Thompson v. Owen

• Decision Date: 22 July 1966
• Docket Number: No. 20215,No. 2,20215,2
• Citation: 218 N.E.2d 351,141 Ind.App. 190
• Parties: John A. THOMPSON, b/n/f Anna Thompson, Appellant, v. O. Keith OWEN, Jr., Appellee
• Court: Indiana Appellate Court

Page 351

218 N.E.2d 351

141 Ind.App. 190

John A. THOMPSON, b/n/f Anna Thompson, Appellant, v. O. Keith OWEN, Jr., Appellee.

No. 20215.

Appellate Court of Indiana, Division No. 2.

July 22, 1966.

As Corrected July 25, 1966.

As Corrected on Denial of Rehearing Aug. 22, 1966.

[141 INDAPP 191]

Jordan D. Lewis, Terre Haute (Lewis & Lewis, Terre Haute, of counsel), for appellant.

Dix, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for appellee.

BIERLY, Judge.

This action was brought by appellant, by his next friend, against appellee, seeking damages for personal injuries allegedly sustained by reason of the negligence of the appellee. In material substance, appellant's Third Amended Complaint, hereafter called complaint, charged that on May 15, 1960, appellant sustained injuries by a rotary power lawn mower, owned by appellee, when being used by Becky Owen, his daughter, struck appellant's foot. The complaint alleged four grounds of negligence.

[141 INDAPP 192] The issues, appropriately formed and closed, were submitted to trial before a jury in the Clay Circuit Court after a change of venue had been perfected from the Superior Court of Vigo County No. Two. At the conclusion of the evidence by appellant, the appellee moved the court instruct the jury to return the verdict in his favor. The Court entered its ruling in these words:

'Said motion is sustained and the jury is returned into open court. The court instructs the jury to return a verdict for the defendant which instruction is furthur identified as Instruction No. 1. * * * and pursuant to said direction of the court the jury returns the following directed verdict, to-wit:

'We, the jury, find for the defendant.'

The court thereupon rendered judgment on the verdict that appellant take nothing, and by his complaint that appellee recover his costs against appellant. Appellant's motion for a new trial was overruled, and thence this appeal arose.

It is the contention of the appellant that it was error for the verdict to be directed against him. Appellant further insists that evidence was produced and in the record from which the jury might reasonably draw inferences on every material allegation contained in appellant's complaint, including one or more of the specific charges of negligence, thereby entitling appellant to have the issues submitted to the jury for action.

Appellant assigns as error the overruling of his motion for a new trial.

The motion for a new trial contains three specifications, to-wit:

'1. The verdict of the jury is contrary to law.

'2. Error of law occurring at the trial, as follows: the Court erred in sustaining defendant's motion for a directed verdict, made at the close of plaintiff's evidence.

'3. Error of law occurring at the trial, as follows: The court erred in giving to the jury a peremptory instruction[141 INDAPP 193] directing the jury to return a verdict for the defendant.'

Appellant combined in his argument Cause No. 1, of the Assignment of Errors, and Causes No. Two and Three of the Motion for a New Trial.

According to Rule 1--7, of the Rules of the Supreme Court of Indiana:

'The court's action in directing or refusing to direct a verdict shall be shown by order book entry. Error may be predicated upon such ruling or upon the giving or refusing to give a written instruction directing the verdict.'

In accordance with the stated provisions of said rule, it appears that specifications (2) and (3) of the motion for a new trial by appellant, make it imperative for us to consider the claims of the appellant, the evidence and permissible inferences tending to sustain it, and thence determine the soundness of the court's direction to the jury to find for the appellee.

It would appear unnecessary to point out the conditions and underlying principles and circumstances under which a trial court may properly direct a jury to find for the defendant, and return a verdict thereon. In the case of Whitaker, Admr. v. Borntrager (1954) 233 Ind. 678, 122 N.E.2d 734, the Supreme Court pointed out and re-stated, in the exact manner, fortified with numerous citations of authorities in support thereof, the fundamental and long established rules and principles as guide lines to trial courts in making a judgment on a motion for a directed verdict.

We recognize that the courts of this state have a duty and responsibility to safeguard the citizens from actions devoid of foundation in law, yet we are not unmindful of this quotation from the case of Garr v. Blissmer et al. (1962) 132 Ind.App. 635, 648, 177 N.E.2d 913, 919, to-wit:

'The constitutional provision of the State of Indiana, as stated in Article 1, Section 20, to-wit:

[141 INDAPP 194] 'In all civil cases, the right of trial by jury shall remain inviolate,'

lays a heavy restraining hand upon the Courts to deny the submission of a cause brought in good faith and based upon a situation involving far reaching and serious consequences to the plaintiff.'

In Estes v. Anderson Oil Co. (1931) 93 Ind.App. 365, 370, 176 N.E. 560, 562, the court said:

'The law very zealously protects one against whom a motion for a directed verdict is addressed.'

We hold that the primary question sought to be presented for judgment in this appeal is whether there was some substantial evidence upon which the jury might have returned a verdict for appellant.

Appellant approvingly quotes from the case Huttinger v. G. C. Murphy Company (1961) 131 Ind.App. 642, 645, 172 N.E.2d 74, 76, as follows:

'In determining when a court may properly grant and give a peremptory instruction to find for defendant, cognizance of the 'compelling laws', as set out in Whitaker, (Administrator, etc.) v. Borntrager, 1954, 233 Ind. 678, 680, 681, 122 N.E.2d 734, must be taken. These are:

1. 'When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. (Citations Omitted.)

2. '* * * The court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. (Citations Omitted.)

3. 'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw." (Citations of cases omitted.)

[141 INDAPP 195] We deem it to be well settled that a trial court may, and it is its duty, upon request properly made to direct a verdict for a defendant in cases where the evidence presented most favorable to plaintiff, together with all reasonable inferences which a jury might draw therefrom, is not sufficient to establish one or more facts essential to the plaintiff's right of action. Patterson v. Southern R. Co. (1913) 52 Ind.App. 618, 99 N.E. 491; Slinkard v. Babb, Wilson (1954) 125 Ind.App. 76, 80, 112 N.E.2d 876, 878:

'The foregoing rule only applies where it clearly appears that the evidence fails to establish one or more of the facts essential to a recovery, and where the facts and the reasonable inferences which may be drawn therefrom are not disputed and where the only possible inference to be drawn therefrom is favorable to the party asking the instruction.' (Our emphasis). Slinkard, supra.

The principal question for our determination in passing upon appellant's assignment of errors, and points two and three raised under his motion for a new trial, is whether there was sufficient evidence as a matter of law to go to the jury on the question of negligence of appellee.

The cause was tried upon four allegations of negligence contained in plaintiff's Third Amended Complaint followed by defendant's denial. These allegations follow:

'(a) Defendant negligently and carelessly allowed his defective power lawnmower to be used by other persons, including this plaintiff, when said defendant knew, or in the exercise of reasonable care should have known, that said lawnmower was defective and inherently dangerous to users, including the plaintiff.

'(b) Defendant negligently and carelessly failed to warn users including plaintiff of the defective condition of his power lawnmower as aforesaid.

'(c) Defendant negligently and carelessly failed to repair his said defective power lawnmower before permitting other persons, including plaintiff, to use his said lawnmower when he knew it was defective as aforesaid.

'(d) Defendant negligently and carelessly failed to inspect his said rotary power lawnmower before permitting [141 INDAPP 196] others including plaintiff to use said mower when he knew it was defective as aforesaid.'

According to the record evidence, plaintiff went to the home of defendant in the morning of May 15, 1960, and then, soon after he accompanied Becky Owen, daughter of the defendant, to the Jenning's home, two (2) doors south, where Becky was intending to mow grass. Becky asked the plaintiff to start the mower which he did.

Upon approaching a flower bed with the mower Becky was unable to turn it aside, and being unable to back it up, she got off the mower, whereupon appellant pushed it back after he was unable to throw the gear shift lever into reverse. Thence, Becky again continued with the mowing. A second time Becky moved up to a flower bed, and being unable to turn the mower aside, she threw the gears into neutral and again got off the mower. As plaintiff attempted to push the mower back, the shift lever apparently jerked from its neutral position to the forward gear, and before plaintiff had disengaged the gears, the mower ran onto his foot causing severe injury to it.

Plaintiff on direct examination gave testimony in part as follows:

'Q. When you saw the lawn mower over there, was anybody ever riding it?

'A. Yes.

'Q. At any time was Mr....