Caserio v. Hurst

99 N.E.2d 440, 121 Ind. App. 435, 1951 Ind. App. LEXIS 221

• Court: Indiana Court of Appeals
• Decided: June 19, 1951
• Docket: No. 18,099
• Status: Published

Opinions

Royse, J.

Appellee was injured when a tricycle he was riding collided with an automobile driven by appellant in the town of Long Beach, LaPorte County. He brought this action for damages against appellant. His complaint charged her with the following acts of negligence: Failure to watch the road ahead; failure to slow down; and failure to' notify appellee of the approach of her said automobile by sounding the horn or giving signal or warning of the approach of said automobile, as required by the laws of this State. Trial to jury resulted in verdict in favor of appellee for $2,000. Judgment accordingly.

One of the errors assigned here is the overruling of appellant’s motion for a new trial. In view of the conclusion we have reached, we need consider only the 5th specification of that motion, that is, that the trial court erred in refusing to give to the jury appellant’s tendered instruction No. 1, which was as follows:

“The Court instructs you to return the following verdict:

“ ‘We, the jury, find for the defendant.’ ”

In this case it was incumbent upon appellee to show by a fair preponderance of the evidence that appellant was guilty of at least one of the acts of negligence charged, and that such negligence was the proximate cause of appellee’s injuries.

We have carefully examined the evidence in the record before us and find no substantial evidence of probative value that would sustain any of the charges of negligence and show that they were the proximate cause of appellee’s injuries; Therefore, the judgment is reversed with instructions to sustain appellant’s motion for a new trial.

Martin, C. J., and Bowen, J., dissent.