Tabor v. Cont'l Baking Co., 16510.

• Citation: 110 Ind.App. 633, 38 N.E.2d 257
• Case Date: December 23, 1941
• Court: Court of Appeals of Indiana

110 Ind.App. 633
38 N.E.2d 257

TABOR
v.
CONTINENTAL BAKING CO.

No. 16510.

Appellate Court of Indiana, in Banc.

December 23, 1941.

Appeal from Circuit Court, Morgan County; Omar O. Harrow, Judge.

Action by Mary Tabor, by May Smith, her next friend, against the Continental Baking Company for injuries sustained by plaintiff when, while coasting, she collided with a parked automobile of defendant. From a judgment in favor of defendant, entered upon a directed verdict, plaintiff appeals.

Judgment reversed and cause remanded, with directions.

[38 N.E.2d 259]

Neal & Williams, of Indianapolis, Kivett & Kivett, of Martinsville, and Boruff & Boruff, of Bedford, for appellant.

White, Wright & Boleman, of Indianapolis, Homer Elliott, of Martinsville, and Geo. C. Forrey, III, of Indianapolis, for appellee.

BEDWELL, Presiding Judge.

In this action the appellant, who was plaintiff below, sought to recover damages for personal injuries resulting from the alleged negligence of the appellee. At the close of the introduction of appellant's evidence the appellee moved the court for a directed verdict. The motion was sustained by the trial court and the legal justification for its action is the only question presented for determination.

The evidence introduced by appellant disclosed the following facts: The appellee is a corporation engaged in the baking business and in the sale and distribution of its products it operates a number of trucks. On or prior to December 23, 1935, the City of Bedford, Indiana, had limited vehicular traffic upon that portion of one of its public streets known as “H” Street, which extended from Nineteenth Street to Twenty-second Street. This had been done by placing wooden barricades or wooden horses across the street intersections with signs thereon bearing the words “Caution Children Sliding.” The purpose of the action was to provide a protected area along such street for children to use in coasting. The street at the particular time was covered with snow and ice and a portion of the protected area was a hill or slope that was suitable for the use of sleds. This action had been taken by some of the city authorities but there is no evidence that any ordinance or resolution had been passed by the city council.

On December 23, 1935, about 4:30 o'clock p. m., a salesman of appellee, who was operating one of its motor trucks for the purpose of distributing its bakery products, drove into “H” Street and thence along the same until he reached the wooden barricades at the intersection with Nineteenth Street. He observed the sign upon the same and saw a number of children with sleds in the protected portion of “H” Street that was south thereof. He drove south around the barricade and into this protected portion and then parked his truck at the curb in front of a store that was located on the east side of “H” Street and within this protected portion. The salesman then went into the store and ascertained that the owner did not desire to buy any of the products of the appellee, but he spent sometime therein in examining and straightening up the stock of the storekeeper; and then returned to his parked bakery truck, and was standing at the rear thereof rearranging bakery products therein, when the appellant, who was then nine years of age, came down the slope of the street on her sled and ran against some portion of the truck, probably the rear axle, inflicting severe injuries upon her head. The appellant charged the appellee with negligence in driving its bakery truck into the protected area of “H” Street with knowledge of the use being made thereof at the time, and with negligence in leaving the truck parked in such portion of such street.

The only grounds upon which the trial court might have directed a verdict for the appellee are as follows: (1) That the appellant was guilty of contributory negligence; (2) that the negligence charged was not the proximate cause of appellant's injury; (3) that the evidence introduced by appellant was not sufficient to establish either of the charges of negligence.

[1][2] The legal situation which justifies a trial court in directing a verdict for a defendant at the close of the introduction of the plaintiff's evidence is well established by our decisions. First, the trial court cannot weight the evidence, for to do so would invade the province of the jury, and it must determine that there is an entire absence of any evidence to support some one or more of the facts essentially necessary to uphold a verdict in favor of the plaintiff. Second, in passing upon the motion it must consider only the evidence most favorable to the plaintiff and it must exclude all conflicting evidence that is favorable to the defendant; and, in its consideration of the evidence that is favorable to the plaintiff it must consider as proved all facts that are supported by such evidence, as well as all facts that can be reasonably inferred therefrom. Monfort v. Indianapolis & Cincinnati Traction Co., 1920, 189 Ind. 683, 686, 128 N.E. 842;Kettner v. Jay, 1940, 107 Ind.App. 643, 26 N.E.2d 546;Farmers & Merchants Bank of Hanna v. Peoples Trust & Savings Bank, 1936, 101 Ind.App. 474, 199 N.E. 892;Curryer v. Oliver, 1901, 27 Ind.App. 424, 426, 60 N.E. 364, 61 N.E. 593.

[3][4] Under the uniform decisions of the courts of this state negligence consists

[38 N.E.2d 260]

in the failure to use due care, or ordinary care, which is measured by the care a person of reasonable prudence would ordinarily exercise under like conditions and circumstances. City of Decatur v. Eady, 1917, 186 Ind. 205, pt. 7 on page 212, 115 N.E. 577, L.R.A.1917E, 242. But how are we to determine what is “due care”, “ordinary care” or “reasonable prudence”? Professor Fowler V. Harper, in his Treatise on the Law of Torts, in discussing this subject, says:

“The reasonableness of the danger and the care and caution necessary to avoid it are to be determined, not by reference to any individual or group of individuals, but by reference to the assumed 'average' person--the 'ordinary reasonably prudent man.' This, of course, is a pure fiction. Any judgment of what is 'reasonable' must be some person's judgment. What is sought is a judgment which, as far as possible, represents the general level of moral judgment of the community. Not the judgment of the most cautious nor the most reckless, but a judgment which, to use another fiction, will fairly represent the social or community notion of what is right, sensible and proper. The judgment on such questions is usually to be made by the jury, unless the case is perfectly obvious, and this insures a fairly representative standard of desirable conduct to which all men must, at their peril, conform.” Harper on Torts, § 69 on p. 158.

[5] It should also be remembered that the absence of negligence or the existence of contributory negligence, is a matter of law to be determined by the court in those cases, only, where the facts are undisputed, and but one inference can be drawn therefrom by reasonable men or sensible impartial men. The phrases “reasonable men” and “sensible impartial men” are equivalent as used herein.

[6] Facts may be undisputed, but if conflicting inferences can be drawn therefrom by reasonable men or sensible impartial men, it is within the province of the jury to determine the particular inference that is to be accepted. Olsen v. Edgerly, 1939, 106 Ind.App. 223, 18 N.E.2d 937;New York Central R. Co. v. Casey, 1938, 214 Ind. 464, 14 N.E.2d 714;Baltimore & Ohio R. Co. v. Reyher, Adm'x, 1939, 216 Ind. 545, 24 N.E. 2d 284. The Supreme Court of this state, in recent case of Danner v. Marquiss, April 21, 1941, 33 N.E.2d 511, 514, well states the principle of law in the following language:

“It was stated definitely in the case of W. C. De Pauw Co. v. Stubblefield, 132 Ind. 182, 31 N.E. 796, that when a state of facts and circumstances exists from which one sensible impartial man would infer that proper care had not been used, and that negligence existed, while another man equally sensible and equally impartial would infer that proper care had been used, and that there was no negligence, the question of negligence must be referred to the jury under proper instructions from the court.”

[7] While due care, or ordinary care, is measured by the care that a person of reasonable prudence would ordinarily exercise under like conditions and circumstances, this is not true where the actor is a child or an insane person. The care that must be exercised by a child is measured by the care that children of like age, knowledge,...