Weddle v. I.R.C. & D. Warehouse Corp.
| Decision Date | 28 April 1949 |
| Docket Number | 17805. |
| Citation | 85 N.E.2d 501,119 Ind.App. 354 |
| Court | Indiana Appellate Court |
| Parties | WEDDLE v. I. R. C. & D. WAREHOUSE CORPORATION. |
Appeal from Circuit Court, Henry County; John H. Morris Judge.
Bingham, Cook & Spilman, of Indianapolis Scotten & Hinshaw, of Newcastle, and Livengood & Livengood, and Orlando F. Ingle, all of Richmond, for appellant.
Brown & Edwards, of Newcastle, and James H. Ronald and Vioni & Vioni, all of Richmond, for appellee.
On November 12, 1945, at approximately 8 o'clock in the evening, a collision occurred between two motor vehicles on U. S. Highway 35 about eight miles northwest of the city of Richmond, Indiana. The vehicles involved were a large tractor-trailer trucking outfit owned and operated by the appellee, who is a common carrier of freight over certain highways in the state of Indiana, and a light pick-up truck owned and operated by the appellant. There were no personal injuries resulting from the accident but both vehicles involved were badly damaged. Conceiving that the appellant's negligence was the sole proximate cause of the collision, the appellee brought this suit in which in sought to recover damages to said tractor-trailer and special damages occasioned by the loss of its use. Feeling himself free from negligence and believing that the fault was entirely that of the appellee, the appellant filed a counterclaim to recover damages to said pick-up truck. The case was submitted to the Henry Circuit Court for trial without the intervention of a jury and resulted in a general finding for the appellee on its complaint and against the appellant on his counter-claim. The appellee's damages were assessed at $8,015.50 and judgment went accordingly. We are asked to reverse such judgment because (1) the evidence fails to establish negligence on the part of the appellant; (2) even though the appellant were negligent, the record discloses contributory negligence as a matter of law; (3) the damages assessed by the court are excessive; and (4) the court erred in admitting certain evidence over the appellant's objections.
The solution of the first two questions requires an examination of the facts. The accident happened after dark on a straight and level stretch of concrete pavement 25 feet wide, running from the northwest to the southeast, and divided by a center stripe into two traffic lanes of equal width. About 380 feet northwest of the point of the accident the highway begins a long sweeping curve to the south and enters an up-grade of about 2%. Approximately 180 feet southeast of the point of the accident said highway enters another slight up-grade and gradually curves to the south. On the night of March 12 1945, a passenger car, belonging to one Welling and traveling southeast toward Richmond, became stalled on the short stretch of pavement between the two curves and grades above mentioned. It was pushed onto the berm on the south or right hand side of the pavement and there it remained. The appellant, who operates a filling station in Richmond, agreed to tow the Welling car into that city for repairs and in attempting to do so used a small pick-up truck driven by his son Howard Jr., a youth 18 years of age. As Howard Jr. reached the Welling car he turned his truck around, headed it toward Richmond and then backed off the pavement onto the berm immediately in front of said car. Preparatory to attaching a tow chain, he shut off his motor and turned out his lights. After making the connection he got back in his truck but the battery therein was too weak to turn the motor over and it refused to start. Thereupon he and said Welling pushed the truck onto the pavement and along the south lane thereof toward Richmond. By putting the gears in mesh while the truck was in motion the motor turned over and started. Howard Jr. thereupon turned on his lights and again backed off the pavement in front of the Welling car but on this occasion he left his lights on and his motor running. He got out of his truck and hooked the tow chain to the Welling car but as he was about to get back in the truck the motor died and the lights went out. He and Welling again tried to start the motor by pushing the truck along the highway toward Richmond. They reached that point in the highway where the up-grade begins and, the motor still refusing to start, they concluded to push the truck backwards. This also failed to produce results and they had just got the truck back to the Welling car when the appellee's tractor-trailer, traveling toward Richmond at 40 to 45 miles per hour and carrying a cargo of 10,786 lbs., came around the curve in the highway to the northwest of where the appellant's truck stood and bore directly down upon it. Said tractor-trailer was equipped with lights and brakes which met the standards required by law and the speed at which it was traveling was not in excess of the maximum prescribed by law. The tractor-trailer's headlights did not reveal the...
To continue reading
Request your trial