*1 them, position, or that all of aware their hazardous including appellee, acquiesced in it. gross speed constitute “Excessive alone does not disregard
negligence, misconduct, wilful or wanton like, safety others, recklessness, along but is a faсtor to with other be considered determining the driver circumstances in whether guilty Jur., p. §537, of such conduct.” Am. 5A 569. here,
Under
circumstances
it is difficult to see
objectively,
the facts
present
how
when tested
can
case of wilful and wanton misconduct.
petition
to transfer should be denied.
Reported in
Note. — Langford. Reynolds, Administratrix etc. v. 30,073.
[No. Filed March 1961.] *2 Anderson, of Anderson, & An- Harold J. Schrenker Browne, Gemmill, & Torrance derson, Campbell, Marion, appellant. Sisson, of for Anderson, appellee. Peck, Shine, of for Scott & petition on case comes to us C. J. This Bobbitt, 1933, ch. Appellate Acts from the under transfer Court Replacement. being 151, p. 800, Burns’ §1, §4-215, 873, Reynolds Langford 166 N. v. E. See opinion Appellate for of the Court. p. is an action Acts ch. §1, under
This 1229, being Replacement, for the Burns’ 1952 §47-1021, alleged wrongful Reynolds death1 of one James C. who “bеing transported payment therefor” in without *3 by operated an owned and automobile herein. assigned overruling appel-
The sole error is the of motion for a trial. lant’s new only specification 3 thereof need consider which
We question: presents trial court err in sus- Did the taining defendant-appellee’s motion for a directed ver- plaintiff-appellant’s at the of tendered conclusion dict ? case-in-chief give properly peremptory in may a trial court there is a defеndant
struction
find for the
“[w]hen
legitimate inference
total absence
evidence or
issue;
plaintiff upon an essential
of the
in favor
and is
the evidence without conflict
or where
that inference is in
susceptible
inference and
of but one
Whitaker, Admr. v. Born
defendant.”
of the
favor
1951,
140, §1,
367, being §2-404,
Re-
p.
Burns’
ch.
1. Acts
placement.
trager
(1954),
678, 680,
734;
233 Ind.
122 N. E. 2d
Gaugh
(1955),
Johnson v. Estate
App.
et al.
125 Ind.
510, 519,
704;
124 N. E. 2d
Vann v. Vernon General
(1956),
App. 503,
Ins. Co.
126 Ind.
was some evidence of value from jury might found, which the from have proper might drawn, inference have been that appellee was of his conduct as he entered the conscious highways; intersection of the that he knew of the ex isting surrоunding conditions such intersection as he it; approached injury passen that he knew ger probably proceeded would if result into the intersection with reckless indifference to the conse quences ; consciously intentionally and that he preferential highway, failed at a as result passenger," Reynolds, of which his James was killed. C. (1943), 600, 607, Bedwell v. DeBolt E. 221 Ind. 50 N. 875; 602, 2d Brown v. Saucerman 237 Ind. N. E. 899. alleges complaint part here relevant that at September 10, 1955, about 11:30 P.M. on decedent, Reynolds, riding guest C. James as a in an auto- operated by appellee-Langford; mobile owned and traveling upon such automobile was north what is com- monly known Main Street Road County, in Madison Indiana; paved that such road is and intersects State approximately city Road 67 one mile south of the lim- Anderson, Indiana; its that State Road 67 is a heav- paved road; ily traveled *4 “stationary and that there are signs stop erected at requiring said intersection traffic stop entering” on Main Street Road to before the inter- section. defendant, Billy Langford, guilty
“That was this, that he to-wit: and wilful misconduct wanton to- speed, rate of at an excessive drove his automobile forty (40) per into said hour In excess of miles wit: slowing into stopping down intersection without traveling truck, Road 67 with a on State side of west completely said to demolish such force and violence as paved off and to said truck run automobile cause highway upset; the decedent portion said and from was thrown a of said and collision result crash pavement intersection of said said automobile onto instantaneously.” killed plaintiff-appellant most The evidence favorable may be summarized as follows: generally at the Road runs east west
State runs point Road of intersection with Main Street preferen- generally It a north and south. is three-lane highway paved Main tial to a width of 30 feet. Street blacktop is 18 feet wide. Road is surfaced with signs at the octagon-shaped There are standard 67, and intersection, on Road one the south side State sign on the side one on the north side. The south just outside the east of Main Road on side Street from approaching and is visible to vehicles intersection from approaching intersection the south. When to the is clear and unobstructed the south view east. eye only testified witness the collision 10, 1955), Saturday (September 11:25 P.M. on
about waiting the center lane of State Road he was while Road, a left turn north on the Main to make Street approaching an the intersection noticed automobile it He saw the automobile when the south. first from intersection, and approximately 400 feet from the traveling speed of 50 or 60 miles it at that time was speed at this into the intersec- per and continued hour *5 tion. He also observed a truck 500 or about 600 feet east of (travеling lights west). intersection burning were on both the truck and the automobile “drizzling and it was time; rain” at the the auto- mobile entered stopping the intersection without and struck the traveling right truck which was west in the (north) lane of State Road 67. truck overturned on the north side of the road about 60 or from 70 feet point contact, and the car “bounced” and facing “turned” northwest in the center lane of State Road 67. sergeant
A of the Indiana State Police who arrived at the scene of the accident at about 11:35 P.M. tеstified raining that it was at the pave- time he arrived wet; ment right was that the front and side of the auto- mobile was completely demolished; almost it “quite a was broad intersection” and there were skid extending marks point impact from the for about 20 feet within thе intersection.
This witness further testified that he had a conver- sation with on or 7, 1955, about October at the home of a presence relative and in the appellee’s brother-in-law and his sister which he told the wit- ness that he and deceased-Reynolds gonе had out evening on Main Street Road the of the accident and following were another car in which there were two girls. They followed the car south on Main Street they Road until discovered car, there was a man in the whereupon they turned around and drove back north reply question, toward town. In to you “Tell what said,” said what he this witness answered: explained Langford “I to Mr. that I hadn’t com- investigation pleted my of the accident and I wanted version of the accident. He told me gone that he had out on Main Street Road that particular evening, Reynolds. he and Mr. He ... sign inter- he there told me knew was However, didn’t real- he didn’t see it and section. ize saw was He he too late. was in the intersection until coming. it something didn’t whether He know last re- a car or truсk and that membered.” principal that she lived
The other witness testified of State Road about two south of the intersection miles Road, September 67 and Main Street and on *6 appellee deceased-Reynolds to her home and the came P.M.; if appellee she at about o’clock that asked her six go Cozy Corner, Reynolds him to the would with and driveway he the she said out of and when “No” backed and drove toward Main Street. that she saw witness further testified
This again evening approximately 11:15 or 11:20 at Reynolds he wanted her when returned with and P.M. get house, and when out of bed and let him in the to step he off to the she refused turned and walked the side, car, he and drove which entered on driver’s the north he turned toward back toward Main Street where 67; appellee when and State Road that she next saw hospital. he was released from the (1954), 369, 375-376, App. Rickner Haller 124 v. Ind. relies, upon appellant and 116 N. E. applicable here not because in that case there was evi- might jury from which have dencе concluded that highway preferential appellant entered the con- with injury to the likelihood of his indifference to scious warning knowledge guest approach and of the and with car, there is no evidence in the rec- of other while any present case from which conscious mis- ord in the warning knowledge approach and of the of or conduct inferred. truck could be App. 504, v. 117 Ind. 72 In Becker Strater court directed a the trial verdict for the E. 2d N. plaintiff’s defendant at the evidence, сlose of the Appellate Court appel- affirmed. In that case both And'appellee lant were familiar with intersection. appellee-Strater approached As the intersection he slowed his car to per hour, about 15 or 20 miles bring did not stop, “stepped his car to a but on gas” and looking started across the intersection without right. to his considering
In whether the evidence was sufficient to misconduct, establish wilful Appellate or wanton page App. Court Ind. said: “When reached the intersection he failed to right look stop. jury A he failed properly could find either these acts negligence. they prop constitute But could erly find either both or acts to constitute' n ..willful or wanton misconduct? think not. Mere We negligence is not sufficient. The violation of a stat ute does not necessarily constitute willful wanton misconduct. nothing appellee’s sug- “There was about conduct gesting intersection He not reckless abandon. did rush into the knowing ap- cars were other proaching. All the evidence is to the effect that knowledge had approach was not warned either he mobile which by no of the auto- *7 him. He struck by or his others own senses. “Applying the definition of or wanton willful forth, set misconduct above we think it cannot be (cid:127) that, knоwledge existing conditions, with said appellee persisted with reckless indifference to con- sequences in prob- a course which he knew would ably injury guest.” in result to his necessary rule as what is show “willful or ’ succinctly misconduct Bedwell v. wanton” stated in 600, DeBolt, suрra (1943), 607, page 50 221 Ind. 875, E. 2d N. follows: guilty “To one hold or ‘wilful’ ‘wanton’ con- duet, it must be that he shown was conscious of knowledge existing conduct and with injury probably re conditions that sult, would indifference to con and with reckless intentionally sequences, some consciously did wrоngful duty act or omitted some injuries.” produced the 508, 514, Leininger Ind. In Sausaman v. added, E. 2d this court N. fact that to constitute ‘will concur “We ‘per there a or wanton misconduct’ must be ful motive,’ that the misconduct must verse be a of such conscious and intentional and existing con that the known nature under injury probably will result therefrom.” ditions are unable the evidence in the record here we From knowledge consciously say that with intentionally approaching, the truck was indifference to the conse and with reckless knоw quences, herein drove into the intersection passenger ing injury would to his if he did so probably result. might charge of a the evidence here sustain
While negligence, is, however, a total of evi- there absence legitimate plaintiff- inference in favоr of dence or appellant upon miscon- of willful wanton issue therefore, gave jury court, properly trial duct. peremptory for defendant- to find instruction plaintiff’s appellee at the close of the evidence.
Judgment affirmed. Arterburn, JJ., concur.
Landis opinion. Jаckson, J., dissents with J., participating. Achor, not
DISSENTING OPINION only question J. The for here determina- Jackson, propriety tion is the the of action the trial of court in sustaining appellee’s motion for a directed verdict at appellant’s close case in chief.
The record here discloses that was familiar collision, resulting with the intersection where appellant’s occurred, death of decedent that he and evening, decedent had twice or three times once just collision, before minutеs The crossed same. by stop signs, presence intersection was marked awaiting turn, by a car clearance make a left approaching truck later involved in the collision. lights burning Appellee were on all vehicles. did speed entering slаcken not before the intersec- tion, and collided with the truck with sufficient force upset point said truck some 60 to 70 from the feet impact. Appellate opinion reported Court in 166 N. E. exhaustively questions reviews and considers the it, my opinion, here involved and arrived at the cor- rect decision. deny
I would
transfer.
Reported in