Vincennes Packing Corp. v. Trosper

• Decision Date: 28 November 1939
• Docket Number: 16150.
• Citation: 23 N.E.2d 624,108 Ind.App. 7
• Parties: VINCENNES PACKING CORPORATION v. TROSPER.
• Court: Indiana Appellate Court

23 N.E.2d 624

108 Ind.App. 7

VINCENNES PACKING CORPORATION v. TROSPER.

No. 16150.

Appellate Court of Indiana, in Banc.

November 28, 1939

Padgett & Rogers, of Washington, and Floyd L. Young, of Vincennes, for appellant.

Shake & Kimmell, of Vincennes, and Charles H. Bedwell, of Sullivan, for appellee.

CURTIS Judge.

The appellee herein says in his brief that he has no omissions or inaccuracies to point out in the appellant's statement of the record in its brief. We, therefore, state that part of the proceedings necessary to an understanding of the questions presented, substantially as so stated by the appellant, as follows: This was an action by the appellee John R. Trosper, against the appellant, Vincennes Packing Corporation, to recover damages for alleged personal injuries sustained by the appellee in a collision of a motorcycle on which he was riding, with a wagon, driven by one Ellis Dyer. The action arises from alleged negligence of the said Ellis Dyer, and the liability of the appellant is claimed on the alleged ground that the said Ellis Dyer at the time of the said collision on October 5, 1934, was engaged in the service of the appellant, and was acting in the discharge of his duties as an employee of appellant under the terms and conditions of his employment with the appellant. The trial was upon the appellee's second amended complaint to which an answer in general denial was filed, and resulted in a verdict of $5,000 for the appellee upon which judgment was rendered. This appeal followed. The sole error assigned is that the trial court erred in overruling the appellant's motion for a new trial. Pleadings other than those above indicated were filed and ruled upon but since no questions are presented as to them they will not be further noticed in this opinion.

We quote some of the salient parts of the said second amended complaint, as follows:

"That said defendant corporation is engaged in the business of packing and canning tomatoes and other products and as such owned, operated and controlled a certain packing plant in the town of Plainville, in Daviess County, State of Indiana, on the 5th day of October, 1934, and for a long time prior thereto.

"Plaintiff further avers that on the 5th day of October 1934, said defendant had in its employ one Ellis Dyer, whose duties it was, under the terms of his employment, to haul away and dispose of waste products from the defendant's said plant by means of a team and wagon furnished him by the defendant for that purpose; and that on said day said Dyer was acting in the course and scope of his said employment and was engaged in the act of hauling and disposing of said waste products for said defendant as its agent and servant.

"Plaintiff further says that on the evening of said 5th day of October, 1934, at about the hour of 6:15 o'clock of said day, the said Dyer was engaged in hauling a load of said waste material from the defendant's said plant on Indiana State Highway No. 57, proximately one mile south of the village of Plainville in said county and state, and was proceeding with said team and wagon in a southerly direction on said public highway; that at the time this plaintiff was riding upon a certain motor-cycle driven and operated by one Richard G. Trosper, and was proceeding from said village of Plainville in a southerly direction on said State Highway 57, following the said Dyer and said wagon.

"That the condition of the weather on said day was cloudy and murky and that by reason thereof and of the time of day it had become and was dark at said hour of 6:15 o'clock, as aforesaid, to such an extent that a person operating or riding upon a motor-cycle on said Highway could not see or observe the presence of a team or wagon thereon, unless said wagon had displayed thereon some appropriate light or reflector to disclose the presence of the same. That at said time and place the said defendant was negligent and careless in this, towit: That said defendant negligently and carelessly failed and omitted to have or cause the said wagon used in its said service to be equipped with any red light or red reflector so adjusted and displayed as to be clearly visible for a distance of at least five hundred (500) feet from the rear, and negligently and carelessly failed to have said wagon equipped with any red light or reflector which was then and there lighted and that said hour of 6:15 o'clock, aforesaid, was on said day more than one-half hour after sundown and one-half hour before sunrise.

"Plaintiff further avers that as a direct and proximate result of the acts and omissions of negligence on the part of said defendant as hereinbefore set out the said Richard Trosper, who was then and there driving and operating said motor-cycle ran the same into and against the said wagon and operated by the said Dyer and used in the service of said defendant, as aforesaid, with great force and violence, by reason of which said motor-cycle and said wagon came into collision and this plaintiff was violently thrown from said motor-cycle to the pavement of said highway.

"Plaintiff says that on said 5th day of October 1934 at about the hour of 6:15 o'clock P. M., of said day when plaintiff received the injuries herein complained of, the said Ellis Dyer was engaged in the service of said defendant and was acting in the discharge of his duties as the employee of said defendant under the terms and conditions of his said employment. * * *

"Plaintiff further avers that at the time of receiving said injuries he was in the exercise of due care and diligence for his own safety and that his said resulting injuries were directly and proximately caused by the acts and omissions of negligence herein charged against the said defendant, separately and severally."

The causes or grounds of the motion for a new trial that are presented for review may be stated generally to be that the verdict of the jury is not sustained by sufficient evidence; is contrary to law; error as to certain rulings on the evidence and error as to each of certain instructions.

At the outset the appellee contends that the appellant's brief presents no questions in that it is claimed to be lacking in the conciseness required by rule 18 of this court. We believe however that to say the least, there has been a good faith effort to comply substantially with the rules and that this court can fully understand from the briefs what the appellant's contentions are. We now, therefore, proceed to the merits of the case.

First upon the rulings as to the evidence. The several objections went mainly to two classes of evidence, towit: Evidence as to the previous hauling of slop to places other than to the Nathan E. Killion farm and secondly as to the wagon in question not having been lighted on previous nights when it was in use upon the road in hauling slop. Some of the questions were preliminary in form and nature and were not such as would in any manner be harmful. The rulings as to such preliminary questions present no difficulty. They were not harmful. In view of the fact that one of the primary questions in the trial was as to the scope of the employment of Ellis Dyer in his hauling of slop from the appellant's plant we do not view the evidence as to the hauling of slop at previous times to the other places mentioned in the evidence as improper. The rulings in that regard were not erroneous. In passing it may be mentioned also that some such evidence went in without objection.

The evidence that the wagon in use at night was not equipped with any lights or reflectors on previous occasions when in use in hauling slop would not of itself establish the alleged negligence of the appellant in not having the wagon in question so equipped on the night of the accident, but in our opinion no reversible error was committed in the ruling admitting it. It would tend to show knowledge on the part of the appellant in such matter. See: Indiana Union Traction Co. v. Pring, 50 Ind.App. 566, 96 N.E. 180; Irvine v. Baxter Stove Co., 70 Ind.App. 105, 123 N.E. 185; W. A. Flint Co. v. John V. Farwell Co., 192 Ind 439, 134 N.E. 664, 136 N.E. 839. Had the appellant desired that such evidence be limited in its scope a proper instruction could have been tendered so limiting it. This was not done. See: Irvine v. Baxter Stove Co., supra; Indiana Union Traction Co. v. Pring, supra; Chesapeake & Ohio R. Co. v. Perry, 71 Ind.App. 506, 125 N.E. 414. In addition it should also be observed that the objections offered were very general in nature and not well...