Wagner v. Sober, Inc.
| Decision Date | 29 June 1949 |
| Docket Number | 17862. |
| Citation | 86 N.E.2d 719,119 Ind.App. 617 |
| Parties | WAGNER v. SOBER, Inc. |
| Court | Indiana Appellate Court |
Haymaker & Acher, Franklin, Spencer Reddington, Thomason & Adams, Indianapolis, Michael B Reddington, Indianapolis, for appellant.
James E. Rocap, John T. Rocap, James E. Rocap, Jr., Indianapolis (Elmon Williams, Indianapolis, of counsel), for Marmon-Herrington.
Gerald F. Branigan, Franklin, Geo. C. Forrey, III, Edw. B. Raub Jr., Jacob S. White, Indianapolis, for Howard Sober.
Appellant by this action seeks to recover damages for personal injuries sustained in a motor vehicle accident. The court directed a verdict in favor of the appellee Marmon-Herrington Incorporated, and the jury also returned a verdict in favor of the other appellee, upon which judgment was duly entered.
From the overruling of his motion for new trial appellant prosecutes this appeal, relying upon the grounds that the verdict is contrary to law, is not sustained by sufficient evidence, error in admitting and refusing to admit evidence, and in refusing to give certain instructions tendered by appellant.
The specification that the verdict is not sustained by sufficient evidence presents no question for review where, as here, the verdict involved is negative, and is against the party having the burden of proof. Wilson, Adm'x. v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Scoopmire v. Taflinger, 1944, 114 Ind.App. 419, 52 N.E.2d 728; Smith, Executrix v. Strock, Executor, 1945, 115 Ind.App. 518, 60 N.E.2d 157.
Briefly summarized, the complaint, which was in two paragraphs, alleges the following: That appellant was operating a United States mail truck west on Washington Street in the City of Indianapolis, and was in the traffic area next to the center of the street. A tractor with another tractor attached thereto was being driven by one Herman Marcus in the same direction and to the north of appellant; that as the vehicles approached Harding Street Marcus swerved the tractor to the left in order to make a left turn, and thereby crowded the truck driven by appellant against a railroad support and abutment, resulting in personal injuries; that Marcus turned to the left without giving any signal or warning and failed to yield the right of way to appellant.
Both paragraphs of complaint allege that Marcus was the servant and employee of appellee of Howard Sober, Incorporated. The first paragraph alleges that Howard Sober, Incorporated, was in turn the agent of appellee Marmon-Herrington, Incorporated, and that Marcus was acting within the scope of his employment and in the line of his duties for each of appellees. The second paragraph alleges that Marcus was in the process of delivering the vehicles to appellee Marmon-Herrington, Incorporated, and that the appellees were engaged in a joint enterprise.
The appellee Howard Sober, Incorporated, by its answer to the second paragraph of complaint, admitted, and the appellee Marmon-Herrington, Incorporated, denied, the allegation that Marcus at said time and place was the servant and employee of Howard Sober, Incorporated, and that the appellees were engaged in a joint enterprise.
Appellant presented testimony of himself and another eyewitness of the commission of the acts of negligence charged in the complaint, together with testimony as to the position of the vehicles after the accident and photographs of the scene, taken shortly thereafter. Appellees presented testimony of eyewitnesses that the accident happened in another manner and by reason of other causes.
Appellant does not dispute the well-established rule that this court will not weigh the evidence or determine the credibility of the witnesses, nor does he take the position that the evidence is without conflict. Rather, he insists that the evidence given on behalf of appellees and which varied from that given by appellant is contrary to physical facts and without any probative value whatever; that when this evidence is discarded the appellant's version of the accident stands without contradiction.
Only two witnesses testified on behalf of appellees as to any material facts. Appellant states that the evidence of one has no probative value because the witness was led to give his story and contradicted himself on cross-examination and suffered a physical collapse on the witness stand; that the other witness testified as to matters which he could not have observed because his view was obstructed and was otherwise at variance with the physical facts; that photographs showed the accident could not have happened as claimed by appellees.
To adopt appellant's view would be to weigh the evidence, which we may not do. If the same witness makes contradictory...
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