Woodrow v. Woodrow

• Decision Date: 01 March 1961
• Docket Number: No. 1,No. 19331,19331,1
• Citation: 172 N.E.2d 883,131 Ind.App. 523
• Parties: Donald G. WOODROW, Appellant, v. Dewey WOODROW, Appellee
• Court: Indiana Appellate Court

Page 883

172 N.E.2d 883

131 Ind.App. 523

Donald G. WOODROW, Appellant, v. Dewey WOODROW, Appellee.

No. 19331.

Appellate Court of Indiana, Division No. 1.

March 1, 1961.

Wallace & Wallace, James B. Wallace, William A. Loy, Covington, Foley & Berry, John R. Berry, Crawfordsville, for appellant.

White & White, Luke White, Vincent F. Grogg, Covington, Harding, Harding & Henthorn, Carl Henthorn, Crawfordsville, for appellee.

COOPER, Judge.

This appeal arises out of an action brought for damages for personal injuries and also of personal property which occurred in an automobile collision. The appellant's complaint was in two paragraphs, one being for personal injury, and the other for property damages.

The appellee filed his answer denying the allegations of each rhetorical paragraph contained in the appellant's paragraph numbers one and two of the complaint.

The cause was submitted to the court for trial, and, at the written request of the appellee herein, the court entered Special Finding of Facts and stated its Conclusions of Law thereon, which conclusions read as follows:

'1. The stopping of plaintiff's car by him on the main traveled portion of the highway, outside of a business or residence district, for the purpose of hunting pheasants, was a violation of the statutes of the state of Indiana, not within any exception thereof and without any legal excuse therefor.

'2. The stopping of the plaintiff's car by him on the main traveled portion of the highway, outside of a business or residence district, for the purpose of hunting pheasants and without any legal excuse therefor, constituted contributory negligence on the part of the plaintiff and was a proximate cause of the collision.

'3. The plaintiff was guilty of negligence which proximately contributed to the injuries and damages complained of by him.

'4. The plaintiff was guilty of contributory negligence.

'5. The plaintiff shall take nothing by either paragraph of his complaint.

'6. The defendant is entitled to a judgment that the plaintiff take nothing by reason of his complaint herein and for costs.'

Thereafter, the trial court rendered the following judgment in favor of the appellee herein:

'It is therefore, ordered, adjudged and decreed by the Court that the plaintiff take nothing by his complaint and that plaintiff pay the costs taxed at $_____.'

Thereafter, the appellant herein filed his Motion for a New Trial which the court overruled. The Motion for a New Trial set forth the following grounds:

'1. The finding of the court is not sustained by sufficient eivdence.

'2. The finding of the court is contrary to law.

'3. The court erred and abused its discretion in not permitting plaintiff to have a reasonable time to study the authorities and prepare a reply to defendant's brief, consisting of twenty-two (22) typewritten pages and approximately seventy (70) citations of authority, before rendering judgment for defendant herein.

'Plaintiff attaches hereto, files herewith and makes a part hereof, the affidavit of his attorneys, James B. Wallace and John R. Berry, in support of causes for new trial numbered ___.

'Wherefore, plaintiff prays the court to either:

'(a) Grant a new trial herein, or

'(b) Under Rule 1-8 of the Indiana Supreme Court to make new findings of fact and conclusions of law, and direct the entry of a new judgment, in favor of plaintiff.'

The only error assigned here is the overruling of the aforesaid motion for new trial.

A review of the record before us reveals this is an appeal from a negative judgment; therefore, the assignment of error, 'The decision of the court is not sustained by sufficient evidence', presents nothing for our consideration. The general rule of law under such circumstances is well stated in the case of Leckrone v. Lawler, 1954 (T.D.) 125 Ind.App. 35, 37, 118 N.E.2d 381, 382, wherein we held:

'As the finding was negative to appellants who had the burden of proof, they cannot challenge the insufficiency of the evidence to sustain the finding, Myers v. Brane, 1944, 115 Ind.App. 144, 57 N.E.2d 594; Wilson, Admrx. v. Rollings, et al. 1938, 214 Ind. 155, 158, 14 N.E.2d 905.' See also Hinds, Executor etc. v. McNair et al., 1955, 235 Ind. 34, 40, 41, 129 N.E.2d 553.

The appellant also asserts the decision is contrary to law, which, as pointed out in the cases of Metrailer v. Bishop, Ind.App.1959, 162 N.E.2d 94, and Leckrone v. Lawler, supra, they may do. However, 'It is only where the evidence is without conflict and can lead to but one conclusion, * * * that the decision of the trial court will be set aside on the ground that it is contrary to law. Losche & Sons v. Williams & Associates, 1948, 118 Ind.App. 392, 78 N.E.2d 447, supra'. Pokraka v. Lummus Co., 1952, 230 Ind. 523, 532, 104 N.E.2d 669, 673.

In the appellant's Proposition A of argument, it is their general conclusion, 'There is no evidence to sustain the trial court's special finding and conclusion that the stopping of plaintiff's automobile on the highway constituted contributory negligence, and was a proximate cause of the collision of defendant's car and the plaintiff's car, the resultant injuries to the plaintiff and the damage to plaintiff's automobile'.

In the different points under this proposition the appellant discusses 'proximate cause', 'contributory negligence', etc.

Under the appellant's Proposition B, the appellant discusses, among other things, the doctrine of 'last clear chance'. We will consider the three foregoing propositions together. Being mindful that this court will not weigh the evidence and will only consider that evidence most favorable to the decision of the trial court, Gary Railways Company v. Michael, 1941, (T.D.) 109 Ind.App. 672, 34 N.E.2d 159; Carlson, Adm'r v. Kesler, 1935, (T.D.1937) 103 Ind.App. 350, 198 N.E. 451, 199 N.E. 889; Wachter v. Dewes, 1940, 108 Ind.App. 469, 29 N.E.2d 1001; Menzenberger v. American State Bank, Inc., 1935, 101 Ind.App. 600, 198 N.E. 819; Rimco Realty & Investment Corp. v. LaVigne, 1943, (T.D.) 114 Ind.App. 211, 50 N.E.2d 953, and, also, the general rule of law that, except in those cases where circumstances are such as to permit only one inference, the question of proximate cause, contributory negligence and the doctrine of last clear chance is always one of question of fact for the trier of the facts, in this instance, the trial court. Rimco Realty & Investment Corp. v. LaVigne, supra.

These propositions are well stated in the case of Bulen v. Pendleton Banking Co., 1948, 118 Ind.App. 217, 229, 78 N.E.2d 449, 455, wherein this court stated:

'In our examination of the record we have failed to find any undisputed evidence which leads inescapably to the establishment of an ultimate fact not found by the court, but which, if found, would necessitate a different conclusion of law from those rendered by the court. In this connection it must be remembered that the trial court as the trier of the facts was the exclusive judge of the weight of the evidence, the credibility of the witnesses, the exclusive judge of what facts had been proven, the inferences to be drawn from the proven facts, and that this court upon appeal cannot substitute its judgment as to what facts were established by the evidence for that of the trial court. Any fact in issue which was not found by the trial court in its special findings of facts must be considered as not having been proved. Home Equipment Co. v. Gorham, 1941 218 Ind. 454, 459, 33 N.E.2d 99; Deming Hotel Co. v. Sisson, 1940, 216 Ind. 587, 593, 24 N.E.2d 912.' (Our emphasis) See also Munson v. Rupker, 1925, (T.D.1933) 96 Ind.App. 15, 148 N.E. 160, 151 N.E. 101; Rimco Realty & Investment Corp. v. LaVigne, supra.

To determine whether the decision of the court is contrary to law, we will consider only the evidence most favorable to the appellee, together with any reasonable inferences which may be drawn therefrom. Pokraka v. Lummus, supra; Rowe v. Johnson, 1945, 223 Ind. 289, 60 N.E.2d 529.

An examination of the evidence most favorable to the appellee in the record before us shows, in substance, that on November 10, 1956, Donald Woodrow, the appellant herein, in the company of ten other friends, went hunting. It appears that the party went in two cars, one driven by the appellant, and the other, by his father, the appellee; that the party left Covington, Indiana, about 5:15 a. m. and drove to the Monte Doty farm, where the party arrived at about 6:15 a. m. Thereafter, the party left the Doty farm and about 6:30 a. m., they were driving north on a county gravel road about eight miles northwest of Lebanon and at about forty-five miles-per-hour to look for another place to hunt, when a pheasant ran out across the road in front of Donald Woodrow's car. The appellant, Donald Woodrow, was driving his car in the lead and his father, Dewey Woodrow, the appellee, was following in the second car. The road they were traveling upon was an ordinary country gravel road about sixteen to eighteen feet wide, and, owing to the dry weather, was dusty; that the visibility of the driver of the second car was impaired by the dust raised by the first car. The appellant stopped his car immediately in his lane of traffic and started to get out so that he could shoot the pheasant; thereupon, the car driven by the appellant's father, Dewey Woodrow, slid into and struck the rear of appellant's car, when appellee Woodrow attempted to stop, to avoid the stopped car of the appellant.

We must stand reminded that the appellant herein cannot attack the decision for the insufficiency of the evidence to sustain it as we have hereinbefore pointed out, but are confined to the specification that the decision is contrary to law; that is, they were denied relief to which, under the evidence, they were entitled.

There is a statute in this state, § 47-2120, Burns', 1952 repl., which provides, as follows:

'(a) Upon any highway outside of a business or residence district, no person shall...