Uhlman v. Johnson, 20237
| Decision Date | 05 October 1965 |
| Docket Number | No. 20237,No. 1,20237,1 |
| Citation | 210 N.E.2d 442,137 Ind.App. 600 |
| Parties | Virginia UHLMAN, Appellant, v. Velma JOHNSON, b/n/f Grady Johnson, a/k/a Velma May Mockaby, and Alfred W. Uhlman, Appellees |
| Court | Indiana Appellate Court |
Walter B. Keaton, Rushville, Robert C. Riddell, of Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellant.
Richard K. Ewan, William Hill Turner, of Turner & Richards, Lawrenceburg, for appellees.
This case comes to us on appeal from the Dearborn Circuit Court. The action involved personal injuries to Velma Johnson a minor while she was riding as a gratuitous guest in an automobile operated by the appellant. The case was tried by a jury and the [137 INDAPP 601] jury rendered a verdict for the plaintiff-appellee in the sum of $5,000.00 upon which the court entered a consistent judgment.
The defendant-appellant filed a motion for new trial setting up three specifications which are as follows:
'1. The verdict of the jury is not sustained by sufficient evidence.
2. The verdict of the jury is contrary to law.
3. Error of law occurring at the trial in that the Court erred in overruling defendant's motion made at the close of all the evidence, to instruct the jury to return a verdict for the defendant, Virginia Uhlman.'
The motion for new trial was overruled and the court's action in overruling the motion for new trial is assigned as error.
The evidence in the trial below was in conflict and this court has repeatedly held that it will not weigh the evidence. Assignment number 1 in the defendant-appellant's motion for new trial therefore presents no question for consideration. This court said in Bassemier v. Sartore (1964), Ind.App., 201 N.E.2d 285, at page 287:
The specification that the verdict of the jury is contrary to law requires us to apply the test set out by our Supreme Court in the case of Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N.E.2d 669, 673.
'It is only where the evidence is without conflict [137 INDAPP 602] and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.'
This case was affirmed in Hinds, Executor Etc., v. McNair et al. (1955), 235 Ind. 34, 129 N.E.2d 553.
Considering the evidence most favorable to the appellee we find the following statements by Mrs. Uhlman who was the defendant below:
'A. Well, we were just driving along and my right hand wheel got off on the--there was about a half a foot where the highway left off and they didn't have that filled in and my right front wheel got off on that, and that's where it starts into the jog, and I tried to get it back onto the highway and I got back into the middle of the road, and I tried to turn the wheel to keep it in the middle and it went into a skid on me and skidded sideways down the road.
Q. And what speed were you going, if you remember, immediately prior to coming into that curve?
Cross examination of Mrs. Uhlman:
'Q. Now Mrs. Uhlman, you do remember seeing a sign saying--'Road Under Construction--Travel at Your Own Risk,' don't you?
'A. As you leave Milan coming onto the highway when it first started there was a sign that had been there all the time before.
Q. What do you mena--'It had been there all the time?
A. Well, it has.
Q. How long had it been there?
A. I don't know.
[137 INDAPP 603] Q. Well, it was there that night, wasn't it?
A. It was there that night.
Q. And you don't of your own knowledge know how long it had been there, do you?
A. No, I had only been over the road once before.'
* * *
* * *
'Q. Well, you saw the sign though, didn't you?
A. Yes, I saw the sign.
Q. And where you went off the road the road wasn't completely constructed, was it?
A. No.
* * *
* * *
Q. And how many beers did you have, if you remember?
A. I had ordered three but I only drank two and a little out of the third one.
Q. So you had two and a very small amount out of the third bottle?
A. Yes sir.'
Cross examination of Velma May Mockaby:
'Q. Uh-huh. How how far ahead of where this bad place was did you tell Mrs. Uhlman to look out for that curve?
A. About a mile ahead?
Q. A mile ahead?
A. Uh-huh.'
Direct examination of Judy Dinsmore:
'Q. Down on State Highway No. 350. Now when you were on State Highway No. 350 how fast was Mrs. Uhlman driving?
A. I would say between eighty and eighty five.
Q. And did you at anytime ask Mrs. Uhlman to slow down?
A. Yes, I did.
Q. Did anyone else in the car ask her to slow down?
A. Yes.
Q. Who else asked her?
[137 INDAPP 604] A. Velma and Mrs. Johnson.
Q. And what did Mrs. Uhlman say?
A. She said she had good tires on the car and that she had drove in the city before.
Q. And she kept on at that rate of speed?
A. Well, when Mrs. Johnson asked her to slow down she slowed down about five miles but that was about all, because I know when I looked at the speedometer it was about eighty.
Q. You saw the speedometer?
A. Yes because I leaned over Mrs. Johnson's shoulder.
Q. All right. Now Judy, what happened next?
A. Well, we were listening to the song Waterloo on the radio and she reached over to turn it up so we could hear it better and we went off the right side of the road and then we went over to the left and we hit that concrete thing on the side of the road, or something, and hit the utility pole, and I know I was knocked out of the car and when I came to everybody else was unconscious and I was up walking around.
Q. Well now, after you came to and you were up walking around, did Mrs. Uhlman say...
To continue reading
Request your trial
-
Wilson v. Jerry Miller, Inc., 2--173A1
...564, 224 N.E.2d 520 (transfer denied). Further, this court will not weigh the evidence adduced at trial. Uhlman v. Johnson et al. (1965), 137 Ind.App. 600, 210 N.E.2d 442. And, in reviewing such a case, we may only determine whether there exists evidence of probative value to support the fi......