Tuttle v. Reid

• Decision Date: 19 May 1964
• Docket Number: No. 20013,No. 2,20013,2
• Citation: 198 N.E.2d 610
• Parties: Edwin E. TUTTLE, Appellant, v. Marjorie Mary REID, Ralph Dean Grant, Appellees
• Court: Indiana Appellate Court

Page 610

198 N.E.2d 610

Edwin E. TUTTLE, Appellant, v. Marjorie Mary REID, Ralph Dean Grant, Appellees.

No. 20013.

Appellate Court of Indiana, Division No. 2.

May 19, 1964.

Rehearing Denied June 22, 1964.

Opinion Superseded 216 N.E.2d 34.

William B. Weisell, Indianapolis, Waldo C. Ging, Greenfield, Locke, Reynolds, Boyd & Weisell, Indianapolis, Ging & Free, Greenfield, of counsel, for appellant.

John T. Hume, III, Indianapolis, Glenn T. Williams, Greenfield, Smith & Jones, Indianapolis, of counsel, for appellee Marjorie Mary Reid.

T. L. Davis, Indianapolis, George Dickmann, Greenfield, Davis & Buehl, Indianapolis, of counsel, for appellee Ralph Dean Grant.

MOTE, Judge.

The record in this case indicates that appellant's wife, Mary S. Tuttle, was riding in the front seat of a Buick Four-door automobile, sitting on the right of the front seat with appellee, Marjorie Mary Reid, the driver of said vehicle, sitting on the left, and with one Mary Francis Kern sitting between them. They were going to a bridge luncheon being held by a mutual friend and fellow member of the American Association of University Women and, on their way, they were proceeding north on Spring Mill Road approaching the intersection of 73rd Street, which also is known and designated as Indiana Highway No. 434.

Appellee, Ralph Dean Grant, at the same time was driving his Lincoln automobile in a westerly direction along said West 73rd Street, or State Road No. 434 and, upon arriving at a point, perhaps twenty (20) feet east of the intersection of said Spring Mill Road and West 73rd Street, he became aware of the fact, as the record further indicates, that the automobile approaching the intersection from the south, in which appellant's wife was riding, as aforesaid, was not going to stop before driving into the intersection, whereupon, he sounded his horn and unsuccessfully attempted to apply the brakes before a collision of the two vehicles in the northeast quarter of the said intersection. The record further reveals that at the time of the collision said appellee was driving thirty (30) to thirty-five (35) miles per hour, having reduced his speed from thirty-five (35) to forty (40) miles per hour when he observed a crossing warning; the posted speed limit at the time was forty (40) miles per hour.

An inference may be drawn that appellant's wife, who was injured in the said collision of the two vehicles, was sitting in the front seat in such manner that she was not looking ahead, but on the other hand, sitting askew as she was, her vision, as the vehicle was proceeding in a northerly direction, was across the car to the northwest.

West 73rd Street was a preferential highway; Spring Mill Road was not. There was a stop sign a few feet south of West 73rd Street and on the east side of Spring Mill Road. None of the ladies in appellee Reid's car appeared to be, or to have been, aware of the fact that said 'Stop' sign was there, and the direct testimony in the record is that said Reid was not at all aware of such fact.

Appellant has presented for our consideration, and strongly urges, that the evidence or necessary inferences therefrom are such that the motion for a directed verdict at the close of plaintiff's case, on behalf of appellee Reid, charged with wanton or wilful misconduct in the operation of the vehicle she was driving, and in which appellant's wife was riding, should not have been sustained but, on the other hand, the cause should have been submitted to the jury.

Appellant's condensed recital of the evidence, necessarily taken from context, is presented in a manner which forces the conclusion, under the rule of inferences, that the motion for directed verdict on behalf of appellee Reid erroneously was sustained, she having been charged in the complaint with wanton and/or wilful misconduct which, together with the charge of negligence on the part of appellee Grant, caused the collision and resulting injuries. A careful reading and analysis of the entire evidence as it pertains to the cause, or causes, of action, brings us to comment with respect thereto.

The evidence concerning a warning either of the stop sign ahead or of the Lincoln automobile approaching the intersection from the east; the evidence with respect to the urgency of such warning, whether given in such manner as to indicate an almost immediate impending peril or a peril which presented a reasonable opportunity to avoid the ensuing collision; whether appellee Reid accelerated the automobile after such warning, or warnings, to the point of collision of the two vehicles; whether, in fact, appellee Reid applied brakes which produced skid marks over a distance of perhaps fifty (50) feet, thus attempting to avoid the collision; the question regarding the amount of time available and the opportunity from the viewpoint of distance when appellee Reid became aware of the peril confronting her and her passengers; and, if in fact, she was guilty of simple negligence acts or wanton or wilful misconduct contributing to the collision and resulting injuries, all appear to us to be in conflict and, therefore, under the decided cases and expressions of the courts on the subject, to present, not a matter of law for the trial court, but a question of fact supported by any reasonable and legitimate inferences therefrom which might be drawn by the jury empaneled to try the case.

A peremptory instruction directing a verdict is unavailable unless a total lack of evidence upon some material issue essential to recovery is manifest, or where no conflict of evidence is presented, and such evidence is susceptible of but one inference and such inference is in favor of the party requesting the instruction. The court must accept as true all facts which the evidence tends to prove and draw all inferences which the jury might reasonably draw against the party requesting the instruction, and, in case of conflict, the court may consider that evidence only which is favorable to the party against whom the instruction is requested. Leader v. Bowley (1961), 132 Ind.App. 528, 178 N.E.2d 445; Clouse v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1.

In the case of Tabor v. Continental Baking Company (1941), 110 Ind.App. 633, 639, 38 N.E.2d 257, the following statement appears:

'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 weigh 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...