125 Ind. App. 113 | Ind. Ct. App. | 1954
Lead Opinion
This is an action in negligence for personal injuries allegedly resulting from a collision between the automobiles pf the appellant and the appellee. The injury complained of was the fracture of the fifth lumbar vertebra of appellee’s spine.
Trial was to the court. Judgment was for plaintiff (appellee) in the sum of $7,500.00.
The error assigned was the overruling of the motion for new trial. The ground relied upon in said motion and assigned as error in this appeal is that the judgment was not sustained by sufficient evidence.
Under this assignment of error, appellant contends first that if the collision occurred in the manner described by appellant there was no negligence on her part and further, that it was physically impossible for the collision to have occurred in the manner described by appellee. Appellant also contends that the uniform testimony of all witnesses, including appellee’s own statements, requires a conclusion that appellee’s injury occurred not at the time and as a result of the collision, but subsequent thereto when the parties were endeavoring to separate the bumpers of the two automobiles.
However, the first issue presented in this appeal is raised by appellee’s motion to dismiss or affirm the appeal. In support of the motion, it is contended that both the praecipe and the Clerk’s certificate to the transcript were insufficient. The praecipe
However, it occurs to us that appellee’s contention in this regard is highly technical and that precedent for a contrary conclusion has heretofore been established. Spencer v. Pettibone (1947), 117 Ind. App. 426, 70 N. E. 2d 439. The praecipe called for “a full, complete, true and correct transcript of all papers, orders and proceedings filed, made and had” in the cause. By any reasonable construction, this request would include the pleadings and order book entries.
We next consider the sufficiency of the Clerk’s certificate to the transcript. Our statute provides:
*118 “. . . the certificate of the clerk shall be in substantially the following form: State of Indiana, County of..........ss:
I,...........clerk of the...........circuit court within and for said county and state, do hereby certify that the above and foregoing transcript contains full, true and correct copies, or the originals, of all papers and entries in said cause required by the above and foregoing praecipe (or praecipes).” §2-3112, supra.
The certificate of the Clerk is as follows:
I, .■ '. . do hereby certify the foregoing and attached to be a full, true, and complete transcript of the proceedings had ... in the Circuit Court ... as said proceedings now appear of record in this office.”
. Appellee urges that the certificate is insufficient in that it is limited to the proceedings had in said cause; that the pleadings, bill of exceptions, and the motion for new trial are not “proceedings” in the cause, and that therefore the certificate does not certify as to their authenticity. Appellee contends further that the certificate cannot be construed as including any of the omitted parts of the record by reference since the certificate makes no reference to the praecipe which called for the transcript of the record.
Appellee concludes that since the motion for new trial, the pleadings and the bill of exceptions containing the evidence are not certified by the Clerk, they are not in the record, and therefore that no question is presented to this court for review.
It is obvious that the certificate of the Clerk does not specifically follow the language of the statute (§2-3112, supra). We are aware also’that our courts have not adopted a clear policy as to the sufficiency of the Clerk’s certificate to the record. In earlier cases, our courts
A decision upon this issue must be influenced by the fact that the present rules of procedure were designed to simplify appellate procedure and that it is the present tendency of our courts to liberally construe them to accomplish that purpose. Hunter v. Stump (1947), 118 Ind. App. 84, 86, 76 N. E. 2d 696; Hayes Freight Lines v. Oestricher (1946), 117 Ind. App. 143, 68 N. E. 2d 792. Therefore, the question here presented is whether the term “full, true and complete transcript of the proceedings had in said cause as said proceedings appear of record in this office” (as certified to by the Clerk), if liberally construed, is sufficiently broad to include and authenticate the entire record in the cause as provided by §2-3112, supra.
In its liberal or general sense, the word “proceedings” has been defined as follows: “In a general sense, the form and manner of conducting judicial business be
We conclude, therefore, that both the praecipe and the Clerk’s certificate, although not expertly drafted, when liberally construed were sufficient. Appellee’s motion to dismiss or affirm is, therefore, denied.
We proceed to consider the issues raised by appellant’s assignment of errors, namely, that the judgment is not sustained by sufficient evidence and is contrary to law. The following facts must be accepted by us as having been established by the evidence. In the City of Sullivan, Wall and State streets are intersecting-streets. Wall street runs east and west, and State street north and south. Appellant had been traveling west on Wall street and was in the act of turning south onto State street. Appellant’s car was headed to the southwest when the collision occurred. State street was 30 feet wide from curb to curb. Cars were parked solidly on both sides of State street to the south crosswalk on Wall street. Appellee was driving north on State, upon the east side thereof, adjacent to and parallel with the cars parked on that street, when the collision occurred. The left front of appellant’s car collided with the right-front and side of appellee’s car.
However, the evidence regarding the point of- the-collision, as related to the intersection generally* presents a troublesome question of fact for this court. It is upon this question of fact that the issue of negligence-
It is appellant’s position that the evidence leads inescapably to the conclusion that the collision occurred within the intersection, with appellant approaching to the appellee’s right and he to appellant’s left, under which circumstance appellant had the right-of-way. This theory was also supported by appellee’s own testimony, that he was “about half way into the intersection” when he first saw appellant, that the collision occurred “almost instantly” and that his car was in “Wall” street following the collision. If the collision occurred in the above manner, we seriously question the sufficiency of the evidence to support the judgment. Appellee also testified in irreconcilable conflict with the above testimony that the collision occurred “about 10 feet south of the crosswalk on the south side of Wall street.” Under the undisputed facts previously stated, we concur with appellant that it would have been physically impossible for the collision to have occurred in the place and manner last recited.
However, in addition to the testimony of the parties themselves, a witness, Mary Wallace, who came upon the scene after the collision, testified that the cars were “on the east side of State Street,” “just scarcely off Wall,” that appellant’s car “might have been a little bit in the (Wall) street.” Also, it appears from the record that, in addition to the above testimony, appellant demonstrated the facts to the court on a rough sketch of the premises, indicating the course traveled by her car prior to the collision. We must assume that this demonstration was understood by the trial court and had probative value. However, the colloquy, relative thereto, is not intelligible to us as recordéd and
We are confronted by the fact that on the issue of negligence, the trial court may have discredited and ignored all the recorded testimony of both the appellant and the appellee and may have based his finding upon the testimony of Mary Wallace and the demonstration of the circumstance regarding the collision as made by appellant. Although this court may entertain serious doubts upon the subject, under the evidence thus presented, we cannot say as a matter of law that there was no evidence of probative value to support the fact of negligence on the part of appellant in this case.
Likewise, the evidence regarding the proximate cause of appellee’s injuries presents a disturbing question. It is not disputed that the fifth lumbar vertebra was fractured. However, the facts as to when and by what cause it occurred is seriously questioned. At the trial, appellee testified that at the time of the collision and before he left the car he felt a severe pain in his back and partially turned blind; that he noticed nausea as soon as he got out of the car and before he attempted to lift and separate the bumpers of the cars. There is medical testimony that it may have been “possible” for appellee’s back to have been fractured in such a collision. It is upon this evidence that the trial court necessarily concluded that the injury occurred as the result of the collision.
We have considered the fact that, in conflict with the above testimony, appellee also testified that after the parties had gotten out of their cars and surveyed the damage, appellee asked appellant to get back in her
We have also considered the fact that, by way of impeachment, appellant introduced a written statement made by appellee, which, in part, was as follows: “No one was injured in the accident, however after I got out of the car I attempted to unlock the bumper, I evidently strained myself in pulling on the car to free it. I heard a loud pop and experienced a severe pain in the small of my back.” Appellant also introduced in evidence the medical report of appellee’s personal physician which, as a part of the history of the injury, recited that the injury occurred while appellee was “lifting the bumper.”
Because of the above evidence, the court had reason to seriously question appellee’s testimony that he suffered severe pain, blindness' and nausea immediately after the collision, and any inference drawn therefrom that the collision caused the injury. However, here again we are confronted by the fact that it was the responsibility of the trial court to resolve all conflicts in the evidence, even within the testimony of the claimant himself. (32 C. J. S., §1042, p. 1127.) The trial court is the sole judge of the weight
From the evidence before him, the trial court concluded that the collision occurred as the result of appellant’s negligence and that appellee’s injury was sustained at the time of the collision, and that it was the proximate cause thereof. There was some evidence of probative value to support this conclusion. Whether appellee was falsifying the facts or telling the truth at the time of the trial is a question which rests with the trial judge and the God before whom appellee made his oath as a witness. It is not a subject which may be reviewed by this court.
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion
I cannot agree with the majority opinion in this case. Appellee had the burden of establishing by a fair preponderance of evidence with probative value that appellant was guilty of at least one of the acts of negligence charged in his complaint and that his injuries were the proximate result of said negligence. I do not believe the evidence in the record, as accurately set out in the majority opinion, shows that appellee sustained the burden upon him necessary to sustain the judgment herein.
In fact it seems to me the majority opinion, in effect, recognizes this to be true when they say:
*125 “It is appellant’s position that the evidence leads inescapably to the conclusion that the collision occurred within the intersection, with appellant approaching to the appellee’s right and he to appellant’s left, under which circumstances appellant had the right-of-way. This theory was also supported by appellee’s own testimony, that he was ‘about half way into the intersection’ when he first saw appellant, that the collision occurred ‘almost instantly’ and that his car. was in ‘Wall’ street following the collision. If the collision occurred in the above manner, we seriously question the sufficiency of the evidence to support the judgment. Appellee also testified in irreconcilable conflict with the above testimony that the collision occurred ‘about 10 feet south of the crosswalk on the south side of Wall street.’ Under the undisputed facts previously stated, we concur with appellant that it would have been physically impossible for the collision to have occurred in the place and manner last recited.” (My emphasis.)
To overcome this the majority relies on the statement of one witness (Mary Wallace) who came upon the scene after the collision occurred. How long after is not disclosed. Nor does this evidence indicate the automobiles were then in the same position as when the accident occurred.
I believe the interests of justice require a new trial in this case.
Rehearing
On Petition for Rehearing
In her petition for rehearing, appellant relies basically upon two major contentions. The first is that there is no evidence of probative value to support the conclusion that appellee’s injuries resulted from the collision between the parties.
Appellant contends secondly that she is entitled to a new trial for the reason that “without respect to any conflicting testimony, appellee’s own evidence with respect to the manner in which the injury occurred leaves it at best a matter of pure speculation whether it resulted (1) from the collision or (2) from the attempt to disengage the cars.”
Appellant further asserts that if the injury occurred under the latter circumstances it was not, under the evidence, the proximate result of any negligence on the part of appellant for which appellant could be liable, but was the independent, voluntary and deliberate act of appellee himself, and was not an act made necessary by any emergency growing out of the collision, nor was it a sudden or spontaneous reaction to a real or imaginary situation of peril caused by the collision.
Applying the above rule to the asserted facts, appellant concludes that although there was conflicting evidence by appellee consistent with the fact that the injury occurred during the collision as the proximate result of appellant’s negligence, such evidence could not be considered as establishing the fact for the reason that appellee’s testimony also supported the fact that injury resulted from lifting one of the cars following the collision, which injury was not under the evidence the proximate result of appellant’s negligence.
The question of liability in event of injury resulting from lifting one of the cars following the collision was not discussed in our original opinion because the issue was considered as moot to a decision of the case, and we do not decide that issue now. Neither do we question the abstract rule of law relied on now by appellant. However, we find that the rule asserted is not applicable to the.facts before us. Here we do not have a circumstance of the same testimony supporting divergent hypothesis within the rule relied upon. Rather we are confronted with distinct and conflicting testimony which supported each of the divergent hypothesis. Appellee’s testimony that he suffered pain, nausea and blindness at the time of the collision and before he attempted to disengage the cars is consistent only with
The fact that the conflicting testimony came from the appellee himself did not negative the fact of its existence. It merely imposed upon the court, and the trial court alone, the duty of resolving these conflicts, weighing the- evidence and deciding the case accordingly. The trial court having rendered judgment upon the evidence before him, this court will not disturb his finding.
Note.—Reported in 119 N. E. 2d 20.
Rehearing denied 121 N. E. 2d 435.
