Zoludow v. Keeshin Motor Express

• Decision Date: 24 May 1941
• Docket Number: 16620.
• Citation: 34 N.E.2d 980,109 Ind.App. 575
• Parties: ZOLUDOW v. KEESHIN MOTOR EXPRESS, Inc.
• Court: Indiana Appellate Court

34 N.E.2d 980

109 Ind.App. 575

ZOLUDOW v. KEESHIN MOTOR EXPRESS, Inc.

No. 16620.

Appellate Court of Indiana, in Banc.

May 24, 1941

Walter R. Arnold, George Kurtz, and Robert Zimmerman, all of South Bend, for appellant.

J D. Pfaff, of South Bend, and Don F. Kitch and Tom R. Huff both of Plymouth, for appellee.

STEVENSON Judge.

The appellant brought this action against the appellee to recover damages for personal injuries sustained by him as a result of the negligence of the appellee.

The complaint alleged that in St. Joseph County there is a public highway known as U. S. Highway No. 2. The complaint alleged that on the 13th day of April, 1938, the appellant was walking along the paved portion of said highway in an easterly direction; that the appellee at said time was the owner of a truck, which its agent and servant was operating over and along said highway; that the appellee, "then and there through its said employee and truck driver carelessly and negligently drove and propelled their said truck at a great, unlawful and dangerous speed, and without giving plaintiff any warning of any kind whatsoever, ran upon, against and over him with great force and violence thereby knocking him down and against the hard surface of said highway." The complaint then described the injuries which the appellant sustained and concluded with a prayer for judgment in the sum of $10,000.

To this complaint an answer in general denial was filed, and the case was submitted to a jury for trial. The jury, after hearing the evidence, returned a verdict in favor of the appellee and judgment was rendered on this verdict. Motion for new trial was filed and overruled, and this appeal has been perfected.

The only error assigned on appeal is the alleged error in overruling the appellant's motion for a new rial. Under this assignment of error, the appellant first charges that the court erred in excluding certain proffered evidence.

The evidence discloses that at the time of the accident one Clarence W. Cox was operating an automobile tractor with trailer attached east on said U. S. Highway No. 2 proceeding to his destination in South Bend. The tractor was being operated with head lights dimmed, and the driver testified that he first observed the appellant walking upon the paved portion of the highway ten or twelve feet ahead of the tractor, and about one foot from the south edge of the pavement. The driver of the tractor testified that he swerved his tractor to the left to avoid striking the appellant, and assumed that he had missed him. He traveled about a block and a half east of the point where he had swerved, and then was signaled by the operator of a truck in his rear to stop. Upon returning to the point where he had first seen the appellant, he found him lying unconscious on the south portion of the highway. The appellant had been struck by that portion of the trailer which extended further south than the tractor part which Cox was operating. The equipment driven by Cox was traveling about twenty-five miles per hour, and Cox gave no signal of his approach.

At the trial of this case, the appellant called the said Clarence W Cox as a witness, and on his direct examination sought to show by the said witness that he was employed on the occasion in question by the appellee, Keeshin Motor Express, Incorporated. The appellant sought to show that the appellee was the owner of the equipment, and that Cox was operating the same in the course of his employment for the appellee. The trial court sustained objections to repeated questions put to the witness Cox on the subject of his employment on the ground that agency cannot be proved by the declarations of an agent. The witness's attention was directed to the day of the accident, and he was then asked this question: "Were you or were you not making a drive for the defendant, Keeshin Motor Express, Incorporated?" After an objection to this question was interposed, the appellant offered to prove that the witness, if permitted to testify, would testify that he was in the employment of the appellee on the evening in question. The court sustained the objection, and this ruling is set forth as one of the grounds for a new trial. A similar objection on the grounds that agency cannot be proved by the declarations of an agent was interposed to the following question: "Now then, Mr. Cox, from whom had you...