Appeal from the Circuit Court of Vermilion County; the Hon.
JOHN F. SPIVEY, Judge, presiding. Affirmed in part and reversed
in part and remanded, with directions.
Rehearing denied and opinion modified May 4, 1965.
An action for personal injury and property damage was commenced in the Circuit Court of Vermilion County, alleging injuries received due to the negligence of the defendant in operating his automobile. A jury trial in the Circuit Court resulted in a verdict for the plaintiff in the amount of $20,000. Post-trial motions were denied and judgment was entered on the verdict, from which judgment the defendant appeals.
The defendant, George Thomas Cox, was driving his automobile in a northerly direction on U.S. Highway 41, approaching an intersection near the outskirts of Carbondale, Indiana. As the defendant approached the intersection, he decreased his speed. The plaintiff, William D. Hyatt, was driving a truck-trailer, following the defendant as both vehicles approached the intersection. The defendant continued to decrease his speed as he approached the intersection. When about 300 feet south of the intersection, he eased his right wheels off the pavement and, according to the evidence, used his rear blinker lights to signal a right turn. According to his own testimony, the plaintiff was applying his brakes and sounding his horn as his truck-trailer approached from the rear. He then eased his left front wheels over the center line at a point about 300 feet south of the intersection.
Clement Jones, a witness for the plaintiff, testified that he saw the accident from his porch some 600 feet south of the intersection, and his testimony was substantially the same as that of the plaintiff, including the observation that the defendant used his rear blinker light to signal a right turn.
Stephen Clark, who was 13 years old at the time of the trial, testified for the plaintiff, stating that he witnessed the accident while playing in the vicinity thereof. At the time of the accident this witness was 10 1/2 years old. He confirmed the account of the plaintiff and of the witness Jones as to the turn signal and to the fact that the defendant's automobile was partially off on the right side of the highway.
The defendant and the two passengers in his automobile, his son and daughter-in-law, each testified that they saw the truck approaching rapidly from the rear; that it was weaving back and forth, and that the defendant used his turn signals to signal a left, and not a right, turn. The defendant and the two passenger witnesses maintain that the defendant's car was struck from the rear prior to beginning a left turn into the intersecting road.
It is uncontroverted that the defendant made a left turn. According to the testimony of the plaintiff, he cut his truck to the right in an attempt to avoid contact, with the result that the left front of the truck struck the right rear of the defendant's automobile, overturning the truck on the north side of the intersection.
The repair of the property damage to the truck cost $5,870.44. The truck was out of operation from June 11, 1961, the date of the accident, until August 3, 1961.
In connection with his claim for damages for loss of use, the plaintiff testified that from January 1, 1961, to the date of the accident he had been making 5 trips per month as a contract carrier, with an average gross revenue of some $600 per trip, and his cost of operation had been $1,200 per month. The plaintiff testified that during the period of repair he had a similar number of loads available to him which, by reason of the damage to his truck, he could not accept. The plaintiff also testified that after the repairs on the truck were completed and the truck was redelivered to him there were occasions of mechanical failure attributed to overheating and damage caused by the accident, with the statement that he lost an average of 2 loads per month from August to December of 1961.
In connection with the claim for personal injuries, no medical testimony was offered. The only testimony received was the narrative testimony of the plaintiff as to the medical attention that he received, his statement that he was in good physical condition prior to the date of the accident, and that subsequent thereto he suffered pain, swelling and discomfort of the back, legs and right shoulder. He was examined by a physician 4 days after the accident and re-examined a month later. Medical bills for examination and consultation in the amount of $82.50 were received in evidence without objection.
1. The plaintiff was guilty of contributory negligence as a matter of law.
2. Plaintiff failed to prove a causal relationship between the ...