Kostial v. Aero Mayflower Transit Co.

85 N.E.2d 644, 119 Ind. App. 377, 1949 Ind. App. LEXIS 167

• Court: Indiana Court of Appeals
• Decided: May 9, 1949
• Docket: No. 17,777.
• Status: Published

Opinions

Royse, P. J.

Appellant brought this action against appellee for damages for the wrongful death of Joseph Dancho, Sr., who left surviving his widow and minor son. At the conclusion of appellant’s evidence the trial court sustained appellee’s motion to direct a verdict for it. From the judgment following that verdict this appeal is prosecuted.

The rule which must guide our decision in this case may be summarized as follows: While it is the duty of the trial court to direct a verdict for the defendant when the plaintiff fails to establish by competent evidence a prima facie case, it is always reversible error for the court to direct a verdict for the defendant when considering the evidence and the reasonable inferences which may be drawn therefrom that are most favorable to the plaintiff, reasonable men might differ as to whether plaintiff, by his evidence, has made a prima facie case. The foregoing rule is so well established by the decisions of our courts that we deem it unnecessary to cite authorities in support of it.

The evidence and the reasonable inferences which may be drawn therefrom disclose the following facts: On the night of October 16,1944, appellant’s decedent was riding as a passenger in the automobile of one Earl J. Lortz on U. S. Highway No. 12. (This is a four-lane highway which runs in a general east and west direction between East Chicago and Gary. At certain points it bends to the north or south.) Decedent and Lortz were fellow-employees and had quit work at midnight. They were traveling east on said highway from East Chicago to their homes in Gary. There is a bend in the highway east of Indiana Harbor. At a point about 100 yards west of this bend they were traveling at a speed of about 20 miles per hour. At this point they ran into a fog so dense an unlighted object could not be seen at a distance . of more than five feet. Lortz who was driving slowed down almost to a stop. He opened the door of his car and looked down so he could see the direction of the pavement. He ended up off the highway on the left (north) hand side of the road. The right back wheel of his car was about six inches on the highway. When Lortz stopped decedent got out of the car with a lighted flash-light in hand and stood in front of the car waving the flash-light. Lortz observed the lights of another car approaching from the east. It had to travel about one block, or 800 feet, through the fog. This car struck decedent and threw his body with such force and violence that it smashed the right back door of the Lortz automobile. Decedent had been out of the car about a minute when the accident occurred. He died three days later. Lortz, who had driven an automobile since 1915, estimated the speed of the car which struck decedent to be forty miles per hour at the time he first saw it. When he saw the approaching car he could not determine whether it was a truck or passenger car. The vehicle which struck decedent scraped the right rear fender and bumper of the Lortz car and left a yellow mark on it. The truck of appellee was painted yellow and stopped about 150 feet west of the point of the accident. It bore appellee’s name.

Appellee, by its answer, admitted that at the time referred to in appellant’s complaint it was operating its truck on this highway.

We are of the opinion the foregoing facts were sufficient to require the submission of this case to the jury. In considering the question of whether appellee’s truck was being negligently operated and whether such negligence was the proximate cause of decedent’s death, it was for the jury to determine from all the circumstances and conditions as shown by the evidence whether Lortz’s estimate of the speed of the truck was reasonable or probable. On this question they also had the right to consider the force and violence of the impact of the truck against decedent’s body. Likewise, the distance the truck traveled through the fog.

While there was some contradiction in the testimony of the only eye witness (Lortz) as to whether decedent was standing on the paved road or just off of it at the time of the accident, the jury had the right to determine this matter. McKee v. Mutual Life Insurance Company of New York (1943), 222 Ind. 10, 15, 51 N. E. 2d 474. The question of just where decedent was standing at the moment of the impact would not establish as a matter of law decedent’s contributory negligence. It was for the jury to determine from all the facts and circumstances in this case whether decedent was guilty of such negligence.

While based on different facts, the principles announced by our Supreme Court in the well-reasoned opinion of Judge Young in Hubble v. Brown (1949), 227 Ind. 202, 84 N. E. 2d 891, are applicable to this case.

Therefore, the judgment of the LaPorte Circuit Court is reversed.

Draper, J. — Not participating.

Bowen, J. — Dissents with opinion.

Crumpacker, C. J. — Dissents.