Toenges v. Walter

• Decision Date: 04 March 1941
• Docket Number: 16500.
• Citation: 32 N.E.2d 95,109 Ind.App. 41
• Parties: TOENGES et al. v. WALTER.
• Court: Indiana Appellate Court

32 N.E.2d 95

109 Ind.App. 41

TOENGES et al. v. WALTER.

No. 16500.

Appellate Court of Indiana, in Banc.

March 4, 1941

Eggeman Reed & Cleland, of Fort Wayne, for appellants.

Mountz & Mountz, of Garrett, and Kenner & Glenn, of Huntington, for appellee.

STEVENSON Presiding Judge.

This action was instituted by Emily Walter, appellee, against the appellants, Elizabeth Toenges and Luella Nord, to recover damages for personal injuries sustained in an automobile accident. This accident occurred on a public highway in Allen County about ten miles north of the city of Fort Wayne at about 4:30 P. M. on April 25, 1935. There was a trial by jury, verdict and judgment in favor of the appellee in the trial court against both appellants in the sum of $1,000. Motion for a new trial was filed, overruled and this appeal has been perfected.

The only error relied upon for reversal is the alleged error in overruling appellant's motion for new trial. Under this assignment of error, the appellants contend, first: that the appellee is shown by the record to have been guilty of contributory negligence as a matter of law, and, second: that the court erred in the giving and refusal of certain instructions.

In determining whether or not the appellee was guilty of contributory negligence as a matter of law, it is necessary to refer briefly to the evidence. The appellee testified that at the time of the accident she was a senior in the Central High School at Fort Wayne and was 18 years of age. On the afternoon in question, she and a girl friend left Fort Wayne in an automobile en route to her home at Hunterstown. About nine miles north of Fort Wayne, a township highway known as the DuPont Road running east and west, intersects with State Road No. 3, which runs north and south. As the appellee was travelling northward on State Road 3, she was following another automobile driven by a Mr. Weaver. The appellee testified that in approaching the DuPont Road, it is necessary to go over a hill, the crest of which is about 300 feet from the DuPont Road. The appellee further testified that she first noticed the Weaver car when she reached the crest of the hill and at that time it was some distance ahead of her and near the intersection. The appellee was unable to give the exact distance between her car and the Weaver car but' fixed it somewhere between 30 and 100 feet. A short distance beyond the DuPont Road the appellants had stopped their car on the pavement and all passengers in the appellants' car had alighted to look for their radiator cap which had fallen from their car. The appellants and the other passengers in the car were looking along the roadside for the lost radiator cap and appellee testified that the Weaver car suddenly stopped in front of her. At about that instant she saw a child and other people at the roadside looking for something and she also testified that she applied her brakes and started to pass the Weaver car on the left side. At that instant, another car coming from the opposite direction blocked her passage, and being unable to stop or pass, she crashed into the rear of the Weaver car and as a result of this accident, sustained a broken leg and other injuries.

Under these facts, the appellants contend that the appellee was guilty of negligence in failing to keep her car at a reasonably safe distance from the car in front of her and so as to provide for the contingency of the car in front suddenly stopping in order to prevent a collision therewith. The appellant contends that failure to so operate such car is negligence as a matter of law. In passing upon this contention, the rule is well established that "Contributory negligence, or the want of reasonable care, is usually a mixed question of law and fact; it is only when the facts are undisputed, and the inferences to be drawn therefrom lead to but one conclusion, that it becomes a question of law. Where the facts are in conflict, or of such a character that reasonable minds may draw different inferences from them, then the question is one of fact to be determined by the jury." Gatewood v. Lynch, 1939, 107 Ind.App. 168, 23 N.E.2d 289, 292.

The appellants do not contend that they were free from negligence in stopping their car upon the travelled portion of the highway, while they alighted to look for the lost radiator cap. Neither do the appellants contend that the appellee could have prevented the collision by the exercise of ordinary care after she actually discovered her peril. They do contend, however, that the appellee was presumed to have seen that which she could have seen by looking and that the duty to keep a lookout ahead, which is imposed upon the driver of an automobile, includes a duty to see that which is in plain sight. Whether the appellee on the occasion in question was guilty of negligence in the operation of her car depends upon many elements and circumstances and the weight of which depends upon their relation to each other.

Our Supreme Court has said that the driver of an automobile does not owe a duty to keep a constant lookout ahead while so driving said automobile, but is only required to use the care which an ordinarily prudent person would exercise in like circumstances. Martin v. Lilly, 1919, 188 Ind. 139, 121 N.E. 443.

Our Supreme Court has also said that: "A driver is bound to observe the red taillight of a car in front of him, proceeding in the same direction, and, still, he is not necessarily chargeable with negligence should he collide with such a car if it should stop suddenly and unexpectedly, and without signaling." Opple et al. v. Ray, 1935, 208 Ind. 450, 460, 195 N.E. 81, 85.

Again the decisions of our courts sustain the proposition that: "One who is lawfully using a public highway, in the absence of knowledge to the contrary, has the right to assume that others using it in common with him will use ordinary care to avoid injuring him." Kraning v. Bloxson, 1937, 103 Ind.App. 660, 666, 5 N.E.2d 649, 652, 9 N.E.2d 107.

Measured by these rules, the question of the appellee's contributory negligence presents a mixed question of law and fact and as such was properly submitted to a jury. Keltner v. Patton, 1933, 204 Ind. 550, 185 N.E. 270. It is impossible for us to say as a matter of fact how close to the Weaver car the appellee was following immediately before the collision. The appellee states that she cannot accurately judge distance in feet. Neither can this court say as a matter of law, at what distance the appellee should have operated her car to the rear of the Weaver car in order to be free from contributory negligence in the light of...