Whitaker v. Borntrager

• Decision Date: 01 December 1954
• Docket Number: No. 29208,29208
• Citation: 122 N.E.2d 734,233 Ind. 678
• Parties: Henry WHITAKER, Administrator of the Estate of Burnie Salyer, Deceased, Appellant, v. isabelle M. BORNTRAGER, Appellee.
• Court: Indiana Supreme Court

Page 734

122 N.E.2d 734

233 Ind. 678

Henry WHITAKER, Administrator of the Estate of Burnie Salyer, Deceased, Appellant, v. isabelle M. BORNTRAGER, Appellee.

No. 29208.

Supreme Court of Indiana.

Dec. 1, 1954.

Louis A. Reidelbach, Winamac, Robert H. Moore, Gary, John Hopkins, Rensselaer, for appellant.

Cope Hanley, Rensselaer, for appellee.

GILKISON, Judge.

A single question is presented by this appeal. That question is: Did the trial court err in sustaining a motion for a peremptory instruction in favor of the defendant, as the close of plaintiff's evidence? If that action was error the cause should be reversed. Otherwise it should be affirmed. When may a trial court properly give the trial jury a peremptory instruction to find for the defendant? The answer seems to be:

When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Jackson Hill Coal & Coke Co. v. Bales, 1915, 183 Ind. 276, 279, 108 N.E. 962. Slinkard v. Babb, 1953, 125 Ind.App. 76, 112 N.Ed. 876, 878, and cases there cited. Gregory v. Cleveland, C., C. & I. R. Co., 112 Ind. 385, 388, 14 N.E. 228.

When there is some evidence or legitimate inference supporting each material allegation of the complaint, the court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. Jackson Hill Coal & Coke Co. v. Bales, 1915, 183 Ind. 276, 280, 108 N.E. 962, supra; American Food Co. v. Halstead, 1905, 165 Ind. 633, 638, 76 N.E. 251. See also Heath v. Sheetz, 1905, 164 Ind. 665, 667, 74 N.E. 505; Slinkard v. Babb, 1953, 125 Ind.App. 76, 112 N.E.2d 876, 878, supra, and cases there cited.

In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonable draw. Orey v. Mutual Life Insurance Company of New York, 1939, 215 Ind. 305, 306, 19 N.E.2d 547; Holtz v. Elgin, etc., Ry. Co., 1951, 121 Ind.App. 175, 98 N.E.2d 245; Chacker v. Marcus, 1949, 119 Ind.App. 672, 674, 86 N.E.2d 708; Id., 119 Ind.App. 679, 89 N.E.2d 455; Balzer v. Waring, 1911, 176 Ind. 585, 594, 95 N.E. 257, 48 L.R.A.,N.S., 834.

In the light of the compelling laws noted we shall consider the complaint and the evidence and inferences tending to sustain it.

The complaint alleges plaintiff is the lawful administrator of the estate of Burnie Salyers, who died on November 3, 1949. That decedent left 'as his next of kin and heirs at law', a number of persons specifically named. That at and prior to the date of his death, decedent was contributing to his sister, Martha Howard, for the support of her and her two minor children. That decedent was killed while walking northward on the west edge of the pavement of U. S. highway 53, some two miles north of Rensselaer, Indiana, at 5:15 P.M. November 3, 1949, by a pickup truck driven by the appellee southward on that highway at that time and place.

Four specific acts of negligence are charged against appellee, as follows:

(1) Driving the truck at a high and dangerous speed, considering the traffic and atmospheric conditions, to-wit: 60 miles per hour.

(2) So driving without keeping a reasonable lookout ahead for persons in the lawful use of the highway.

(3) And without having the truck under reasonable control, to avoid hitting pedestrians, lawfully using said highway.

(4) Without sounding the horn or giving any warning of her approach to pedestrians lawfully on the highway.

To support his complaint, plaintiff presented evidence as follows:

Daryl M. Ford, a state policeman, testified that he was called to investigate the collision about 5:30 P.M. Nov. 3rd, 1949. The streets were not lighted and it was dark. He went to Donnelly's corner. The ambulance was there. There was a pickup truck that had been involved in an accident with a pedestrian. If the body was there it was in the ambulance. He did not question the defendant that night, but did the next day. She said she was going south on 53, and at the intersection or close to it she was meeting a farm tractor at the time of the accident. All at once there was someone in front of her truck and the next thing she knew she struck the object, whatever it was. The policeman told her she had struck Burnie Salyers. When the policeman got to the scene, the pickup truck was there, about 175 feet south of Donnelly's corner on the west side of the road angling the front end toward the northeast and the rear end toward the southwest. It had run off the highway about 100 feet from the intersection, turned around and headed back. The body was thrown about 100 feet after if left the car. We could see where it rolled on the ground before it came to a stop. There was blood where the body stopped. It stopped about 125 feet south of the intersection on the west side of the road, and 80 feet north and west of the point where the truck came to a stop. The grill and radiator in the center of the front of the truck were damaged. He went to the funeral home and saw the dead body.

As a witness for the plaintiff, the defendant, Isabelle Borntrager, among other things,...