Walters v. Rowls

• Citation: 16 N.E.2d 969,105 Ind.App. 632
• Decision Date: 21 October 1938
• Docket Number: 15890.
• Parties: WALTERS v. ROWLS et al.
• Court: Indiana Appellate Court

16 N.E.2d 969

105 Ind.App. 632

WALTERS v. ROWLS et al.

No. 15890.

Appellate Court of Indiana, in Banc.

October 21, 1938

Simmons & Simmons, of Bluffton, for appellant.

M V. Skinner and Chas. E. Schwartz, both of Portland, for appellees.

WOOD Judge.

The appellee, Fred H. Rowls, recovered a judgment against the appellant, Arlet Walters, for damages for personal injuries alleged to have been sustained by him as the result of an automobile accident, claimed to have been caused by the negligent conduct of appellant and appellee Leonard Pense.

The issues on which the cause was tried consisted of a fourth paragraph of complaint, to which appellant and appellee Pense filed answers in general denial.

The allegations of this paragraph of complaint, briefly summarized, are: that the appellant parked a motor truck owned and operated by himself, on the west side of the traveled portion of a north and south state highway, outside of the corporate limits of a city or town, at a time of day which was one-half hour after sunset and one-half hour before sunrise without placing caution signals or flares, as required by §§ 47-525 and 47-526, Burns' 1933, Secs 11178 and 11179, Baldwin's Ind. St.1934; that while said motor truck was thus parked, the appellee Rowls was walking along the highway toward it; that at the same time an automobile approached said motor truck along the highway from the south; that at the same time the appellee Pense approached said motor truck along the highway from the north in an automobile, owned and operated by himself, at a speed of from forty to fifty miles per hour; that said automobile was not properly equipped with headlights as required by § 47-504, Burns' 1933, Sec. 11154, Baldwin's Ind.St.1934; that as the appellee Pense approached said motor truck in his automobile, the appellee Rowls stepped from the traveled portion of the highway for the purpose of permitting Pense to pass the motor truck; that the headlights of the automobile approaching the motor truck from the south blinded the appellee Pense so that because of his failure to have his automobile properly equipped with headlights, he did not see the motor truck and ran against the same with great speed and force, thereby pushing the motor truck against and upon appellee Rowls, severely injuring him as alleged in the complaint.

The cause was submitted to the court and a jury for trial resulting in a verdict and judgment for the appellee Rowls against the appellant and for the appellee Pense against the appellee Rowls. Appellant filed a motion for a new trial which was overruled, and this appeal follows. The only error assigned for reversal and not waived by appellant is the overruling of his motion for a new trial. Appellant limits the discussion in his brief to the alleged causes for a new trial designated as number three, that the verdict of the jury is not sustained by sufficient evidence, number four, that the verdict of the jury is contrary to law, number seven, error of the court in refusing to give to the jury each of instructions numbered 1, 2, and 3 tendered by the appellant, and specification number nine, error of the court in giving to the jury instruction number eleven of its own motion.

That portion of § 47-525, Burns' 1933, Sec. 11178, Baldwin's Ind.St.1934, pertinent to the action of appellee Rowls reads as follows: "Every motor vehicle used for the carriage of passengers for hire, and every motor-truck and commercial motor vehicle shall be equipped with at least two (2) red warning flags and two (2) brilliant-burning danger or caution signals, so constructed as to burn with a brilliant light. Suitable holders shall be provided for elevating said signals in a prominent position above the surface of the highway, when in use, as provided in the next section hereof. No light other than a red light shall be used as a stop light." While § 47-526, Burns' 1933, Sec. 11179, Bald win's Ind.St.1934, also furnishing a basis for the action, is in the following language: "It shall be unlawful for any person to park a motor vehicle or motor-bicycle or to leave any such motor vehicle or motor-bicycle, without an attendant, on the traveled portion of any highway outside the corporate limits of any city or town, except in case of emergency. While any motor vehicle used for the carriage of passengers for hire, or any motor-truck or commercial motor vehicle is stopped on the traveled portion of any highway outside the corporate limits of any city or town, for a purpose other than taking on or discharging passengers or freight, or complying with traffic requirements, the operator thereof shall cause to be displayed in a prominent position above the surface of the highway at a distance of approximately three hundred (300) feet from such vehicle in the direction from whence it was coming and also in the direction in which it was proceeding, a brilliant-burning danger or caution signal, as described in section forty-eight (§ 47-525), if such stopping occurs between one-half hour after sunset and one-half hour before sunrise, or if the weather conditions are such as to produce low visibility, and a red warning flag if such stopping occurs at any other time. (Acts 1925, Ch. 213, § 49, p. 570; 1933, ch. 90, § 5, p. 653.)"

The only evidence before the jury for its consideration on the issues tendered between the appellant and the appellee Rowls upon the trial of this cause was that presented by appellee Rowls. The following pertinent facts may be summarized therefrom: the appellant was operating a motor truck in a south direction on State Road 26 in Jay County, Indiana, one hour after sunset on September 15, 1933, when his motor truck ran out of gasoline at a point about thirty rods south of the residence of appellee Rowls; appellant parked the truck which was headed south on the west side of the paved portion of the highway with the left wheels standing on the pavement about eighteen inches or two feet from the west side thereof; the headlights and tail light on the truck were in good condition, but appellant did not have them turned on when the truck stopped, nor were they turned on at any time previous to the accident complained of; the truck was also equipped with two brilliant-burning danger or caution signals, but the appellant did not at any time previous to the...