Tate v. West, 17980

• Decision Date: 27 September 1950
• Docket Number: No. 17980,17980
• Citation: 120 Ind.App. 519,94 N.E.2d 371
• Parties: TATE v. WEST.
• Court: Indiana Appellate Court

Page 371

94 N.E.2d 371

120 Ind.App. 519

TATE v. WEST.

No. 17980.

Appellate Court of Indiana, in Banc.

Sept. 27, 1950.

Craig & Craig, Brazil, for appellant.

Harvey L. Fisher, Brazil, Edward H. Knight, Indianapolis, for appellee.

CRUMPACKER, Judge.

The appellee, while walking across National Avenue in the city of Brazil, Indiana, was struck and injured by an automobile owned and driven by the appellant. He brought this suit and was favored by a jury with a verdict in the sum of $4,000 upon which judgment was entered over the appellant's motion for a new trial.

Said judgment is challenged first on the theory that in legal effect the evidence charges the appellee with contributory negligence and therefore the verdict upon which it rests is contrary to law. We can so hold only if the controlling facts are not in dispute and are susceptible of the single conclusion upon the part of reasonable men that the appellee's failure to exercise ordinary care for his own safety contributed proximately to his injury. Baltimore & Ohio R. Co. v. Reyher, Adm'x, 1940, 216 Ind. 545, 24 N.E.2d 284. The accident in controversy happened in the business district of the city of Brazil on its main east and west thoroughfare early on a Saturday evening when vehicular traffic was heavy. The street involved is 60 to 70 feet in width from curb to curb and is divided by a center stripe into two lanes, the northern one of which is designated for the use of westbound vehicles, and the southern one for traffic moving east. It is undisputed that the appellee attempted to cross the street at a 'point other than within a marked crosswalk or within an unmarked crosswalk at an intersection'. Burns' Stat.1933, § 47-2033. In the vernacular, the appellee, when struck, was crossing the street in the 'middle of the block' where there was no crosswalk marked for pedestrians' use. Under these circumstances the appellant, who was driving west and not engaged in overtaking and passing another vehicle, had a statutory duty to keep to the north and right of the center stipe, Burns' Stat.1933, § 47-2010, and the appellee was burdened with a duty to yield the right of way to all vehicles rightfully upon the roadway. Sec. 47-2033, supra.

The evidence most favorable to the appellee indicates that he attempted to cross the street from the north to the south. Before leaving the north curb he looked toward the east, the direction from which vehicles using the north half of the pavement would be expected to come. He saw a number of automobiles approaching but they were beyond the first street intersection to the east and, believing that he could proceed with safety, he started across and continued on his way without again looking toward the east. When he got to the center stripe in the street he looked to the west, the direction from which vehicles using the south half of the pavement would be expected to come, and, to use his own words, 'it was clear.' He crossed the center stripe and had taken two or three steps to the south thereof when he was hit by the appellant's car which approached from the east at a speed of 30 miles per hour and which he neither saw nor heard. After he was struck he was not thrown or dragged by the appellant's car but fell to the pavement at the point of impact where he remained with his head to the north several feet south of the center stripe.

From this evidence the inference is irresistible that the appellant was driving her automobile to the left of the center of the street when the accident occurred. That being true, and there being no evidence in the record tending to explain or excuse such conduct, we think it is clear that the appellant's automobile was not rightfully upon the roadway to which the statute refers in creating a duty upon pedestrians to yield the right of way to vehicles. Under these facts it seems to us that the appellee's duty was not measured by the above statute but rather by the common law requirement that he exercise that degree of care for his own safety as an ordinarily careful and prudent man would have used under the same or like circumstances. In our opinion his failure to do so does not appear as a matter of law. Whether his failure to look to the east after he had reached a zone in which vehicles are not ordinarily expected to come from the east, constituted negligence was purely a jury question under proper instructions by the court.

At the close of all the evidence and before argument the appellant tendered seven interrogatories and requested the court to submit each of them to the jury for answer. The briefs of counsel disclose no objections to these interrogatories but the court, for reasons not stated, rejected them all. In our opinion interrogatories numbered 1, 2, 5, 6 and 7 were proper and should have been submitted to the jury. Each asks for the finding of an ultimate fact and none of them contains words requiring a legal definition, through court instruction, to make the meaning clear. Tucker Freight Lines, Inc., v. Gross, 1941, 109 Ind.App. 454, 33 N.E.2d 353. While the rule is that proper interrogatories must be submitted, when properly and timely requested, it is also well established that when the answers to interrogatories which have been refused could not control the general verdict in any event, there is no available error in refusing them. Works' Indiana Practice, Lowe's Revision, Vol. 3, § 56.14, and cases cited. Every reasonable presumption, inference and intendment must be indulged in favor of the general verdict, Pittsburgh C., C. & St. L. Ry. Co. v. Lightheiser, 1907, 168 Ind. 438, 78 N.E. 1033, and it must stand unless its conflict with the answers to the interrogatories is such that said conflict could not have been overcome by any evidence legitimately admissible under the pleadings. Tucker Freight Lines, Inc., v. Gross, supra; Marietta Glass Mfg. Co. v. Pruitt, 1913, 180 Ind. 434, 102 N.E. 369; Indiana R. Co. v. Maurer, 1903, 160 Ind. 25, 66 N.E. 156.

The interrogatories in question, if answered 'yes,' would have constituted a finding of contributory negligence on the part of the appellee and would bar a recovery except in the presence of facts showing a negligent failure by the appellant to take the last clear chance to avoid the accident. The fact, if it be the fact, that there is no evidence in the record warranting the application of the last clear chance doctrine is of no consequence. Even had the court submitted the interrogatories in question and had they been answered in favor of the appellant, in considering the question of whether or not the general verdict was thereby overridden, we could not have looked to the evidence. Haddon School Tp of Sullivan County v. Willis, 1936, 209 Ind. 356, 199 N.E. 251; Oliver v. Coffman, 1942, 112 Ind.App. 507, 45 N.E.2d 351. In determining the question we would have been limited to a consideration of the pleadings, the general verdict, the interrogatories and the answers thereto. L. S. Ayres & Company v. Hicks, 1942, 220 Ind. 86, 40 N.E.2d 334, 41 N.E.2d 195, 356; Inter State Motor Freight System v. Henry, 1942, 111 Ind.App. 179, 38 N.E.2d 909.

The appellant contends, however that the doctrine of last clear chance is wholly outside the theory of the appellee's complaint and therefore evidence in support thereof would have been inadmissible and contributory negligence would bar a recovery. In Pfisterer v. Key, 1941, 218 Ind. 521, 33 N.E.2d 330, 334, last clear chance was not specifically pleaded but the court said: 'The doctrine of the last clear chance, generally speaking, is not a doctrine of pleading, but a doctrine of evidence.' In Indianapolis St. R. Co. v. Marschke, 1906, 166 Ind. 490, 77 N.E. 945, 947, the court, in speaking of the necessity of pleading last clear chance, quoted an Iowa case with approval as follows: 'We do not think such an allegation is necessary to be...