Topper v. Dunn

• Decision Date: 10 October 1961
• Docket Number: No. 19375,No. 1,19375,1
• Citation: 132 Ind.App. 306,177 N.E.2d 382
• Parties: George Elliott TOPPER, Appellant, v. Eva F. DUNN, Appellee
• Court: Indiana Appellate Court

Page 382

177 N.E.2d 382

132 Ind.App. 306

George Elliott TOPPER, Appellant, v. Eva F. DUNN, Appellee.

No. 19375.

Appellate Court of Indiana, Division No. 1.

Oct. 10, 1961.

Warren, Merrell & Combs, Wilbur F. Dassel, Evansville, for appellant.

John H. Jennings, Gerald G. Fuchs, Evansville, for appellee.

RYAN, Presiding Justice.

This was a negligence action brought by the appellee against the appellant to recover damages for personal injuries sustained by the appellee, a pedestrian, who was struck by an automobile being driven by the appellant. The cause was originally filed in the Vanderburgh Probate Court and was venued to the Posey Circuit Court. It was tried in the Posey Circuit Court with a special judge presiding, and the jury returned a verdict for the appellant and against the appellee. The court rendered judgment on such verdict, and the appellee filed her written motion for a new trial. The court then sustained the appellee's motion for a new trial, set aside the judgment on the verdict, and ordered a new trial, to which ruling the appellant excepted. A second trial was then held before a jury in the Posey Circuit Court, and the jury returned a verdict for the appellee and against the appellant. The court awarded judgment on this verdict in the sum of Nine Thousand Two Hundred Twenty-five ($9,225.00) Dollars.

Appellant then filed his motion for a new trial, which was overruled. The appellant assigns as error: 1. that the court erred in sustaining the motion for a new trial of the appellee, and 2. that the court erred in overruling the motion for a new trial of the appellant.

The appellant argues his Assignment of Error No. 2, which was the overruling of his motion for a new trial, and which motion contains twenty-seven (27) specifications. The first of these specifications that appellant submits is that the court erred in sustaining the plaintiff's (appellee) motion for a new trial.

We agree with the contention of the appellant that this is his first opportunity to have the ruling of the court granting the plaintiff's motion for a new trial reviewed. Until the enactment of chapter 25 of the Acts of 1959, being Burns' § 2-3201(b) (1961 Replacement), the sustaining of a motion for a new trial was not available error until the case was re-tried and a final judgment rendered. Carlson v. Roth, 1946, 117 Ind.App. 272, 71 N.E.2d 579. However, as appellant recognizes, where a new trial is granted the ruling will rarely be reversed.

'To authorize a reversal of an order granting a new trial, three things must be shown: 1. That there was a plain abuse of judicial discretion. 2. That flagrant injustice has been done the complaining party. 3. A very strong case for relief.' 4 Works' Indiana Practice, Lowe's Revision, § 61.140, p. 120.

The trial court's ruling on the granting of the motion for a new trial after the first trial, reads as follows:

'Comes now the parties in person and by their respective attorneys and the court having heretofore, on April 29, 1958, heard argument on motion for new trial and having considered briefs filed thereon, and having determined that the verdict of the jury is not sustained by sufficient evidence, now sustains plaintiff's motion for a new trial, and the judgment of this court heretofore rendered on the jury's verdict is now set aside and a new trial ordered.'

Appellant urges that the words in the above ruling 'and having determined that the verdict of the jury is not sustained by sufficient evidence' indicates that the trial court was laboring under a misapprehension as to which one of the parties had the burden of proof. However, the appellee's motion for a new trial contained ten (10) specifications of error and we view the above cited language as merely surplusage, since the statement of reasons by a trial court as to why it makes an order granting a motion for a new trial, cannot be held to change the effect of such an order, which is the granting of the motion for a new trial. Whinery, Executrix v. Kozacik, 1937, 104 Ind.App. 349, 11 N.E.2d 86.

Appellant further urges that the granting of the new trial resulted in a flagrant case of injustice to the appellant. In respect to such contention, the language of the Supreme Court of Indiana in the case of Novak, Adm'x, etc. v. Chicago & C. Dist. Tr. Co. et al., 1956, 235 Ind. 489, 135 N.E.2d 1, is particularly noteworthy. It is there stated in 235 Ind. at page 497, 135 N.E.2d at page 5:

'* * * it is the duty of the trial judge, who also saw the witnesses and heard the evidence from their lips, on proper motion to order a new trial of the cause. This is a duty which the trial judge should exercise with careful deliberation. However, in every case where it does appear, after considering the conflicts in the testimony and weighing the evidence, that the verdict is against the clear preponderance of the evidence, it is the imperative duty of the trial judge to exercise this prerogative of his office with 'firmness for the right,' and order a new trial.'

A new trial having been granted, a much stronger case must be made for the reversal of such ruling than if it had been denied. Substantial justice must appear to have been done in the trial court or a new trial granted. In the appeal it should appear clearly that substantial justice has not been done or the judgment should be affirmed. Lowry v. Indianapolis Traction, etc., Co., 1921, 77 Ind.App. 138, 126 N.E. 223.

A careful scrutiny of the record before us fails to reveal that there was a plain abuse of judicial discretion; that a flagrant injustice has been done the complaining party; and that there has been made a very strong case for relief.

Appellant next objects to the giving of Appellee's Instruction No. 4, which reads as follows:

'I instruct you that at the time of the accident in question there was in full force and effect the following statute of the State of Indiana, which reads in part, as follows:

"Where no special hazard exists, the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:

"(1) Twenty (20) miles per hour in any business district.

"Business District. The territory contiguous to and including a highway when fifty (50) per cent or more of the frontage thereon for a distance of five hundred (500) feet or more is occupied by buildings in use for business,'

'If you find from a fair preponderance of the evidence that the defendant, George Elliott Topper, operated his automobile at a speed greater than Twenty (20) miles per hour in a business district in accordance with the above statutory provisions, then such conduct on the part of said Topper would authorize you to find that he was operating his said automobile at a speed which was greater than was reasonable or prudent and if you further find that such conduct on the part of said Topper was the sole proximate cause of the accident complained of in the complaint and the resulting injuries, if any, to the plaintiff, then, under such circumstances, your verdict should be for the plaintiff, Eva Dunn, and against the defendant, George Elliott Topper.'

Appellant's objection thereto is as follows:

'The defendant objects to the giving of Plaintiff's Instruction No. 4 for the reason that it fails to define or include a residential area as is provided in the Statutes from which the Statute is taken. There is absolutely no evidence which would indicate that there was territory contiguous to and including a highway where fifty percent or more of the average (frontage) thereon for a distance of five hundred feet or more is occupied by buildings in use for business is contemplated in the portion of the Statute cited. The Instruction is misleading; it does not follow the evidence; and is highly prejudicial to the defendant.'

While it is true that the instruction fails to define or include a residential area, the instruction is complete and correct insofar as it goes, and the appellant not having requested or tendered a fuller or more complete instruction upon the subject can not now with just cause complain. Cleveland, etc., R. Co. v. Harrison, 1912, 178 Ind. 324, 98 N.E. 729. Nor can we say, viewing the evidence most favorable to the appellee, that there was 'absolutely no evidence' that this was a business district as contemplated in the portion of the statute cited.

Appellant further argues the granting of Appellee's Instruction No. 6, which reads as follows:

'The Court instructs you that there are three statutes in the State of Indiana which were in full force and effect at the time of the collision in question relative to the duty of a motorist to give timely warning by sounding his horn for the benefit of a pedestrian, the pertinent part of which said three statutes are as follows:

"In approaching a pedestrian who is walking or standing upon the traveled part of any highway, or curve or a corner in a highway where the operator's view is obstructed, every person driving or operating a motor vehicle or motor-bicycle shall slow down and give a timely signal with the bell, horn or other devise for signaling.

"Notwithstanding the foregoing provisions of this act, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon a roadway and shall give warning by sounding the horn when necessary, * * *

"* * * The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon the highway.'

'So, in this case, if you should find that the defendant, George Elliott Topper, violated any one or more of the above statutes by failing to give to the plaintiff, Eva Dunn, timely warning of his approach in accordance with the above statutes, without any excuse therefor, and that such failure was the sole proximate cause of the accident in question, and the injuries, if...