Summary
In Lee Bros. v. Jones, 114 Ind. App. 688, 54 N.E.2d 108, the host drove at 50 miles per hour in passing a truck on a four lane highway.
Summary of this case from Hunter v. HortonOpinion
No. 17,184.
Filed April 15, 1944. Rehearing denied May 25, 1944.
1. AUTOMOBILES — Injuries — Guests — Determination of Relationship — Purposes of Trip Primarily Social — Incidental Benefits. — If an automobile trip is primarily social, incidental benefits though monetary do not exclude the guest relationship within the meaning of the Guest Statute, but if the trip is primarily for business purposes and the one to be charged receives substantial benefit, even though not payment in a strict sense, the guest relationship does not exist. p. 697.
2. AUTOMOBILES — Injuries — Guests — Determination of Relationship — Payment Not Expected by Owner — Gasoline Not Furnished. — Where a passenger in an automobile who was riding home with the owner thereof, furnished no gasoline for the trip, and there was no definite arrangement or understanding between them concerning gasoline, nor did the owner expect him to pay anything for the transportation or to contribute any gasoline, within the meaning of the Guest Statute, the passenger was being transported without payment therefor at the time of a collision with another automobile on the trip. p. 697.
3. AUTOMOBILES — Injuries — Guests — Construction of Statute — Elements of Wanton or Wilful Misconduct. — The words "wilful" and "wanton" as used in the Guest Statute are nearly synonymous, and, to constitute wanton or wilful misconduct it must appear that the driver of an automobile is conscious of his conduct, and with an appreciation of existing conditions knows that his conduct if persisted in, will probably result in injury to his guest; and yet with reckless indifference to consequences, he consciously or intentionally persists in such conduct and as the proximate result thereof his guest is injured. p. 699.
4. AUTOMOBILES — Injuries — Guests — Evidence of Racing Not Sufficient to Establish Wanton or Wilful Misconduct. — The conduct of a motorist who was racing with a truck on a four-lane highway at a speed of 50 miles per hour with heavy traffic approaching and passing in the opposite direction did not constitute wanton or wilful misconduct within the meaning of the Guest Statute, where it was undisputed that he was traveling on that side of the highway reserved for vehicles traveling in the same direction which side was clear and unobstructed, and hence he had no reason to believe that an approaching automobile would suddenly leave its lane and cut across the center line into his path, nor to anticipate that the truck with which he was racing would crowd him over the line into the path of vehicles approaching from the opposite direction. p. 699.
5. AUTOMOBILES — Injuries — Actions — Evidence — Automobile Attempting to Pass Truck in Collision With Approaching Vehicle — Speed of Truck Not Proximate Cause. — The speed of a truck or an automobile which was attempting to pass it at the time of a collision with an approaching automobile which occurred on a four-lane highway, was not the proximate cause of the accident, where the truck and automobile passing it were on the right-hand side of the highway, and the jury in an action for wrongful death of a guest in the automobile passing the truck found there was no proof that the driver of the approaching automobile was negligent in any respect other than cutting across the center line of the highway without reasonable excuse. p. 700.
6. STATUTES — Construction — Act to Be Construed as a Whole. — In construing a statute it is not to be presumed that any part thereof is intended to be meaningless, and every part must be considered in connection with the whole so as to make all parts harmonize, if practicable, and give sensible and intelligent effect to each. p. 702.
7. AUTOMOBILES — Criminal Offenses — Reckless Driving — Speeding Up While Another Vehicle Attempting to Pass — Statute Not Applicable to Four-Lane Highways. — Subdivision (c), clause 4, of § 52 of ch. 48 of Acts 1939, which characterizes as reckless driving the speeding up of an automobile or refusing to give half of the roadway to a driver of an automobile overtaking and desiring to pass, has no reference to four-lane highways, as otherwise that portion of § 63 of the same act which excepts such highways from its provisions against increasing speed while another is passing, would have no meaning. p. 702.
8. AUTOMOBILES — Injuries — Actions — Complaint — Speed of Truck Increased While Vehicle Attempting to Pass on Four-Lane Highway — Breach of Duty Not Charged. — In an action for wrongful death of a guest riding in an automobile which was struck by an approaching automobile on a four-lane highway when the automobile in which decedent was riding was attempting to pass a truck on the inside lane of the right-hand portion of the highway, the complaint did not allege nor did the evidence sustain a charge of breach of duty, either statutory or at common law, on the part of the driver or owner of the truck, in increasing the speed of the truck as the automobile in which decedent was riding attempted to pass. p. 702.
9. AUTOMOBILES — Injuries — Actions — Questions for Jury — Discharge of Duty by Truck Driver Whose Truck Was Being Passed by Vehicle on Four-Lane Highway. — In an action for wrongful death of a guest riding in an automobile which was struck by an approaching automobile on a four-lane highway when the automobile in which decedent was riding was attempting to pass a truck on the inside lane of the right-hand portion of the highway, the question of whether the driver of the truck discharged his duty to make reasonable use of his senses to detect probable danger, considered in connection with all the surrounding circumstances, was one for the jury. p. 703.
10. AUTOMOBILES — Injuries — Actions — Evidence — Proximate Cause — Approaching Automobile Failing to Remain on Proper Side of Road. — The failure of a truck driver whose truck was being passed on the inside lane of the right-hand portion of a four-lane highway, to keep a reasonable lookout for other vehicles on the highway could not be the proximate cause of a collision between the passing automobile and one approaching from the opposite direction, where the jury found that such approaching automobile's failure to remain on the proper side of the highway and its crossing over the center line thereof was the proximate cause of the accident and that such failure and the subsequent collision were almost simultaneous. p. 703.
11. AUTOMOBILES — Injuries — Actions — Evidence — Proximate Cause — Concurrent Acts of Truck Driver Whose Truck Was Being Passed and Driver of Approaching Automobile. — Where, in an action for wrongful death of a guest riding in an automobile which was struck by an approaching automobile on a four-lane highway when the automobile in which decedent was riding was attempting to pass a truck on the inside lane of the right-hand portion of the highway, it was established that the driver of the approaching automobile was negligent in driving over the center line of the highway and that the truck driver crowded the automobile attempting to pass him, the two acts of negligence were concurrent and each could be considered a proximate cause of the accident, where there was evidence that each of such acts continued up to the moment of impact. p. 704.
12. AUTOMOBILES — Injuries — Actions — Questions for Jury — Racing by Truck Driver — Crowding of Vehicle Attempting to Pass Truck. — In an action for wrongful death of a guest riding in an automobile which was struck by an approaching automobile on a four-lane highway when the automobile in which decedent was riding was attempting to pass a truck on the inside lane of the right-hand portion of the highway, the question of whether racing and crowding on the part of the driver of the truck constituted negligence was one for the jury. p. 705.
13. APPEAL — Evidence — Sufficiency — Verdict to Be Upheld if Possible on Any Theory Supported by Evidence. — It is the duty of the Appellate Court to uphold the jury's verdict if it can be done on any theory supported by the evidence and law of the case. p. 705.
14. TRIAL — Verdict — Construction — Verdict Against Driver and Owner of Truck Which Plaintiff Attempted to Pass and Against Driver of Approaching Automobile Not Inconsistent. — In an action for wrongful death of a guest riding in an automobile on a four-lane highway when the automobile in which decedent was riding was attempting to pass a truck on the inside lane of the right-hand portion of the highway, the jury's verdict against the truck driver and owner as well as against the driver of the approaching automobile was not inconsistent within itself, where the latter negligently drove over the center line of the highway at the same time that the truck driver was speeding up and crowding the passing automobile, resulting in its being thrown to the left. p. 705.
15. APPEAL — Pleadings — Amendment on Appeal — Theory of Liability on Which Verdict Based Not Stated in Complaint. — On appeal from a judgment for damages for personal injuries, where a complaint does not state the theory of liability on which the verdict is based, it must be deemed amended to conform to the case established by the evidence in order that the verdict may be upheld. p. 705.
16. TRIAL — Instructions — Inconsistent Statement of Witness — Admissibility as Impeachment Only — Erroneous Statement Where Witness a Party. — Where a defendant in an action for wrongful death resulting from an automobile collision testified that he at no time crossed the center line of the highway but remained at all times in his own proper lane of traffic, and a court reporter testified for other defendants who were the owner and driver of a truck which the automobile in which decedent was riding was attempting to pass, to the effect that she had taken the first defendant's statement in a hospital shortly after the accident in which statement he admitted that in order to avoid a car ahead of him in his lane, he applied his brakes and skidded over the center line of the highway into the path of the oncoming automobile in which plaintiff's decedent was killed, an instruction that a witness' previous inconsistent statement does not tend to establish the fact of its truth but simply goes to the credibility of the witness, was erroneous, since the person referred to was a defendant to the action and his admissions were direct and substantive evidence of the facts admitted; but such error was harmless where the jury by its verdict found it to be a fact that such defendant did get over the center line of the highway without the benefit of such evidence. p. 707.
17. AUTOMOBILES — Negligence — Increase in Speed While Another Vehicle Attempting to Pass — Rule at Common Law. — An increase in the speed of an automobile while another is attempting to pass on a four-lane highway does not constitute negligence at common law unless an ordinarily prudent person would not have done so under the same or similar circumstances. p. 708.
18. TRIAL — Instructions — Enumeration of Alleged Acts of Negligence — Increase in Speed of Truck on Four-Lane Highway While Vehicle Attempting to Pass — Erroneous Assumption That Act Negligent. — In an action for wrongful death of a guest riding in an automobile which was struck by an approaching automobile on a four-lane highway when the automobile in which decedent was riding was attempting to pass a truck on the inside lane of the right-hand portion of the highway, an instruction enumerating the specific acts of negligence charged against the truck driver and owner, among which was that of increasing the speed of the truck while the other vehicle was attempting to pass it, and stating that it was sufficient for plaintiff to prove any one act of negligence alleged, was erroneous since it either invaded the province of the jury by assuming that under the circumstances of the case, an ordinarily prudent person would not have increased the speed, or erroneously assumed that the statute prohibiting an increase of speed when another vehicle is attempting to pass applies to four-lane highways. p. 708.
19. TRIAL — Instructions — Conflicting Instructions — Speeding Up of Vehicle While Another Attempting to Pass — Erroneous Statements. — In an action for wrongful death resulting from an automobile collision, instructions that there was no statutory prohibition against the driver of a truck increasing its speed while another automobile was in the act of passing it, and that the speeding up of an automobile when an overtaking driver desires to pass constitutes reckless driving as defined by statute and therefore is negligence per se, were hopelessly conflicting and therefore erroneous. p. 709.
20. APPEAL — Harmless Error — Invited Error — Attempt to Cure Erroneous Instruction — Requested Instruction Not Invited Error. — Where an erroneous instruction given by the court on a certain issue was identical with one requested by defendants, they were not precluded from complaining of it on the theory of invited error where another instruction tendered by defendants and adopted by the court as its own correctly stated the law and constituted a futile effort to cure error and not to invite it. p. 709.
21. NEGLIGENCE — Contributory Negligence — Imputed Negligence — Joint Enterprise — Creation — Necessary Elements. — In order to constitute a joint enterprise, there must be a contract express or implied between the parties, and it must appear, particularly in negligence cases, that a right of mutual control of the subject-matter of the enterprise, or over the property engaged therein, existed. p. 710.
22. NEGLIGENCE — Contributory Negligence — Imputed Negligence — Joint Enterprise — Evidence Insufficient to Establish. — In an action for wrongful death of a passenger in an automobile resulting from a collision, evidence disclosing nothing more than a custom or practice whereby the driver had taken such passenger to work in his car frequently for a period of two or three years prior to the accident and that on 15 or 20 occasions each year the passenger had purchased gasoline for use in the car, was insufficient to establish a joint adventure between them, and hence the driver's negligence could not be imputed to the passenger. p. 710.
23. APPEAL — Harmless Error — Instructions — Proof of Undisputed Facts Unnecessary — Allegations Either Immaterial or Sufficiently Established. — An instruction that the facts alleged in certain rhetorical paragraphs of the complaint were undisputed and required no proof, was harmless to a defendant who had pleaded that he had no knowledge concerning the facts alleged in such paragraphs, where such allegations were either proven by plaintiff's undisputed testimony, admitted by the parties, immaterial as far as such defendant was concerned, or amply supported by evidence. p. 711.
24. TRIAL — Instructions — Construction — Mere Misnomer of Term "Preponderance of the Evidence" Not Misleading. — An instruction which accurately defined the term "preponderance of the evidence," but used the words "by the burden of proof" could not have been misleading by the mere misnomer, in the first sentence thereof, of a legal principle otherwise correctly set out. p. 712.
25. AUTOMOBILES — Operation — Overtaking Another Vehicle on Left Side of Highway — Statute Applicable to Four-Lane Highways. — Section 65 of ch. 48 of Acts 1939, concerning the overtaking of one vehicle by another on the left side of the center of a roadway is applicable to four-lane highways as well as to those of two lanes only. p. 712.
26. AUTOMOBILES — Negligence — Acts Constituting — Sudden Skidding Unattended by Prior Negligence. — The sudden skidding of an automobile, in and of itself and unattended by prior negligence from which such skidding proximately results, does not constitute negligence. p. 713.
27. WITNESSES — Impeachment — Inconsistent Statements — Effect of Statements of One Defendant on Another. — Where a defendant in an action for wrongful death resulting from an automobile collision testified that he at no time crossed the center line of the highway but remained at all times in his own proper lane of traffic, and a court reporter testified for the other defendants, who were the owner and driver of a truck which the automobile in which decedent was riding was attempting to pass, to the effect that she had taken the first defendant's statement in a hospital shortly after the accident in which such statement he admitted that, in order to avoid a car ahead of him in his lane, he applied his brakes and skidded over the center line of the highway into the path of the oncoming automobile in which plaintiff's decedent was killed, court reporter's testimony as to the prior statement could not be considered substantive evidence of unavoidable skidding, and as to the other defendants it constituted an admission that his car was over the center line of the highway, but as proof of his defense it was hearsay and self-serving, and hence his tendered instructions concerning sudden skidding were properly refused, there being no evidence upon which such defense could be predicated. p. 713.
From the Lake Superior Court; Fred Egan, Judge.
Action by Georgiann Jones, administratrix of the estate of William A. Jones, deceased, against Lee Brothers, Inc., and others for damages for the wrongful death of plaintiff's decedent resulting from injuries sustained in an automobile collision. From a judgment for plaintiff, defendants Lee Brothers, Inc., and others appealed.
Reversed in part and affirmed in part. By the court in banc.
Gavit Richardson and Kenneth Call, all of Gary, and Riley, Reed, Murphy McAtee, of East Chicago, for appellants.
Daniel J. Redding, Oscar B. Thiel and Robert H. Moore, all of Gary, for appellees.
On the 5th day of July, 1942, William A. Jones suffered physical injuries in an automobile accident as a result of which he died four days later, leaving a widow, Georgiann Jones, and two minor children. The widow, as administratrix of her husband's estate, brought this suit in the Lake Superior Court to recover resulting damages and charges the appellants with negligence proximately causing such accident. The case was tried to a jury and resulted in a joint verdict for the administratrix, the appellee here, against all of the appellants in the sum of $10,000. Each appellant appeals and assigns as error the overruling of his separate motion for a new trial. Each of said motions challenges the legality of the verdict and the sufficiency of the evidence to sustain it and complains of certain instructions given to the jury by the court on its own motion and the court's refusal to give certain others. The motions of Lee Brothers, Inc., James Lanter and Almon H. Baldwin also complain of the admission and exclusion of certain testimony and the refusal of the court to grant a new trial because of newly discovered evidence.
The accident in controversy occurred in the eastern outskirts of the City of Gary on a four-lane concrete highway running east and west and divided in the middle by a yellow stripe with two lanes north of such stripe for west bound traffic and two lanes south thereof for traffic moving east. At about 4 o'clock in the afternoon of July 5, 1942, the appellant Lanter, for and on behalf of his employer Lee Brothers, Inc., was driving a large truck of the tractor-trailer type in an easterly direction in the most southerly or outer lane of said highway. He was overtaken by the appellant Baldwin driving a Ford automobile in which the appellee's decedent, William A. Jones, was also riding. In the act of passing the truck the appellant Baldwin used the inner lane for east bound traffic or the first lane to the south of the yellow line. When almost abreast of said truck the Baldwin car was struck almost head on by a Plymouth automobile which was being driven in a westerly direction along said highway by the appellant Eli Nedelchoff, and, as a result of such collision, the plaintiff's decedent received injuries from which he died. The appellee charges in her complaint that the appellants were each careless and negligent in the manner in which they drove their respective vehicles, and, as the proximate result of the concurrent negligence of each, the accident occurred.
The appellee's case against the appellant Baldwin is based on the theory that at the time of the accident her decedent was a passenger for hire in the Baldwin automobile and that, 1, 2. therefore, the Guest Statute, relieving Baldwin of responsibility for mere negligence, has no application. At the close of the appellee's case the appellant Baldwin moved for a directed verdict on the theory that the evidence discloses a guest and host relationship between him and the appellee's decedent and fails to show that his conduct in the premises was wanton and wilful. A proper instruction for the purpose was tendered by said appellant but refused by the court and this, we think, was error.
The evidence on this question most favorable to the appellee discloses that Baldwin and Jones had been friends for many years. For some time prior to the accident in controversy they had worked in the same department of the Carnegie-Illinois Steel Corporation, Gary Works. Baldwin lived near Valparaiso and Jones in East Gary, and for two or three years Baldwin had been accustomed to pick Jones up and drive him to and from work. In return Jones had paid for gasoline used in the Baldwin car on 15 or 20 occasions each year. It is undisputed, however, that on the particular occasion in controversy Baldwin did not know that Jones was in the mill, but they met casually after the day's work and left for home together in Baldwin's car. Jones furnished no gasoline for this particular trip and there was no definite arrangement or understanding between them concerning the same, nor did Baldwin expect Jones to pay anything for such transportation or contribute any gasoline therefor.
The automobile Guest Act of 1929 as amended in 1937, § 47-1021, Burns' 1940 Replacement, § 11265 Baldwin's Supp. 1937, relieves the owner or driver of an automobile from liability to an occupant except for injuries resulting from the wanton or wilful misconduct of the operator, if such occupant is then being "transported without payment therefor." The word "guest" as used in the above statute has been defined by the Supreme Court as follows:
"The word `guest' has more of social than business significance. The words `without payment for such transportation' imply some valuable consideration for the ride. The presence of the person injured must have directly compensated the owner or operator in a substantial and material way. If the trip is primarily social, incidental benefits though monetary do not exclude the guest relationship. If the trip is primarily for business purposes and the one to be charged receives substantial benefit, though not payment in a strict sense, the guest relationship does not exist. Expectation of a material gain rather than social companionship must have motivated the owner or operator in inviting or permitting the other person to ride." Liberty Mut. Ins. Co. v. Stitzle (1942), 220 Ind. 180, 41 N.E.2d 133.
This definition was applied by this court in determining the relationship of the parties in the case of Albert McGann Securities Co. v. Coen (1943), ante, p. 60, 48 N.E.2d 58. Measured by this standard it is obvious that the appellee's decedent was being "transported without payment therefor" when the accident that caused his death occurred, and that the appellant Baldwin is not responsible for mere negligence in the operation of his automobile at the time and place in suit.
The appellee contends that, even so, the evidence discloses wanton and wilful misconduct on the part of Baldwin, and that her complaint should be deemed amended to conform to the 3, 4. proof and thus permit the verdict to stand. Such procedure would be proper if, as a matter of law, the evidence discloses Baldwin's misconduct to have been wanton and wilful, but we cannot agree that it does. It has been held by the Supreme Court that the words "wilful" and "wanton" as used in the automobile Guest Statute are nearly synonymous. To constitute "wanton or wilful misconduct" it must appear that the driver of an automobile is conscious of his conduct, and with an appreciation of existing conditions knows that his conduct, if persisted in, will probably result in injury to his guest; and yet, with reckless indifference to consequences, he consciously or intentionally persists in such conduct and as the proximate result thereof his guest is injured. Bedwell v. DeBolt (1943), 221 Ind. 600, 50 N.E.2d 875. See also Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, vol. 4, § 2322, pp. 109 and 110; Berry, Automobiles, Seventh Edition, § 2-340. The most that can be said in support of the appellee's position in the case at bar is that the appellant Baldwin was racing with the appellant Lanter and, in doing so, drove his automobile at 50 miles per hour with "heavy traffic" approaching and passing in the opposite direction. It is undisputed, however, that the so-called race took place on a four-lane highway and on that side thereof reserved for vehicles traveling in the same direction. His side of the highway ahead was clear and unobstructed, and the appellant Baldwin had the right to assume that approaching vehicles would stay on their proper side of the center line as the law required. Under such circumstances, it cannot be said that the appellant Baldwin consciously and intentionally persisted in a course of conduct that probably would result in injury to appellee's decedent. He had no reason to believe that an approaching automobile would suddenly leave its lane and cut across the center line into his path, if his own version of the manner in which the accident happened is accepted, nor to anticipate that the truck with which he was racing would crowd him over said line into the path of vehicles approaching from the opposite direction as claimed by the appellant Nedelchoff. If we were to concede that the appellant Baldwin's conduct was negligent it would yet fall short of being "wanton or wilful" as that term is used in the statute and as it has been defined by the courts.
In support of their contention that the verdict against them is not sustained by sufficient evidence, the appellants Lanter and Lee Brothers, Inc., first contend that there is a total 5. lack of proof that the appellant Nedelchoff was negligent in any respect other than cutting across the center line of the highway without reasonable excuse, and, therefore, the jury's verdict against him must be considered as predicated upon that particular charge of negligence and definitely places the Nedelchoff car in Baldwin's path. This being so, the appellants Lanter and Lee Brothers, Inc., assert that the speed at which their truck or the Baldwin car was driven could not possibly have been the proximate cause of the accident in controversy. This, we think, is true. It was held in Stobie v. Sullivan (1919), 118 Me. 483, 105 A. 714, that where a collision occurred between speeding automobiles, which collision would not have happened if each had remained on its proper side of the road, it was not the speed of either but the position of one car or the other on that side of the road where it did not belong that was the proximate cause of the accident. The same doctrine is announced in Geddes, etc., Co. v. Dunne (1935), La. App., 165 So. 879; O'Mally v. Eagan (1931), 43 Wyo. 233, 350, 2 P.2d 1063, 5 P.2d 276; Whallen v. Dunbar (1922), 44 R.I. 136, 115 A. 718. The appellee has referred us to a number of cases in which the courts of this State have held speed to have been the proximate cause of the accidents involved therein. An examination of these cases, however, discloses that it was the increase of speed or failure to decrease the same after discovering peril that resulted in such accidents. In the present case neither the complaint nor the proof indicate a situation in which the appellant Lanter, in the exercise of reasonable care, had time to do anything to avoid the collision after he discovered or should have discovered that the same was imminent. In this connection appellee suggests that the jury may have found that the Nedelchoff car had been astride the center line for some time prior to the accident and that Lanter and Baldwin should have seen it so approaching and yielded the right of way. There are no allegations in the complaint to support such a theory and no evidence whatever from which the jury could have drawn such an inference. The Nedelchoff group of witnesses were very positive in their insistence that they were on the proper side of the center stripe at all times as they approached the place of accident, and all other witnesses say that Nedelchoff's departure from his lane was sudden and almost simultaneous with the impact.
The appellants Lanter and Lee Brothers, Inc., next contend that the appellee's charge of negligence in increasing the speed of their truck as Baldwin was in the act of 6-8. passing is not actionable. Such conduct, they insist, does not constitute actionable negligence at common law, unless coupled with such circumstances as would make it a violation of one's duty to exercise ordinary care; and that in the instant case neither the complaint nor the proof supports such a theory. As the statutory prohibition against increasing speed while another is passing specifically excepts such an act on four-lane highways (§ 47-2012, Burns' 1940 Replacement, § 11189-73, Baldwin's Supp. 1939) said appellants say no negligence can be predicated on the theory that they violated a statutory duty in that respect. The appellee insists, however, that the appellants overlook § 47-2001, Burns' 1940 Replacement, § 11189-62, Baldwin's Supp. 1939, which applies to all highways whether of two, three or four lanes and that Clause 4 of Sub-division (c) thereof expressly prohibits increasing speed when another driver is attempting to pass. Sub-division (c) of the above statute characterizes certain conduct as reckless driving, and Clause 4 thereof reads as follows: "Speeding up or refusing to give half of the roadway to a driver overtaking and desiring to pass." This statute is § 52 of ch. 48 of the Acts of 1939; and § 47-2012, Burns' 1940 Replacement, § 11189-73, Baldwin's Supp. 1939, supra, is § 63 of the same Act. In construing a statute it is not to be presumed that any part thereof is intended to be meaningless, and every part of the statute must be considered in connection with the whole, so as to make all parts harmonize, if practicable, and give sensible and intelligent effect to each. Brown v. State ex rel. Pavey (1932), 94 Ind. App. 669, 182 N.E. 263; McQuaid v. State ex rel. Sigler (1937), 211 Ind. 595, 6 N.E.2d 547, 118 A.L.R. 1079. This principle of statutory construction compels us to hold that Sub-division (c), Clause 4, supra, has no reference to four-lane highways as otherwise that portion of § 47-2012, Burns' 1940 Replacement, § 11189-73, Baldwin's Supp. 1939, which excepts such highways from its provisions against increasing speed while another is passing, would have no meaning. It is our opinion, therefore, that the appellee's complaint neither alleges nor does the evidence sustain a charge of breach of duty, either statutory or at common law, on the part of the appellants Lanter and Lee Brothers, Inc., in increasing the speed of their truck as Baldwin attempted to pass.
We cannot agree with said appellants, however, in their assertion that there is no evidence in the record upon which the jury could have found that Lanter failed to keep a 9, 10. reasonable lookout for other vehicles on the highway. His own testimony is to the effect that he did not see the Nedelchoff car until after the accident. He was aware of vehicles approaching on the north side of the highway but paid no particular attention to them and could not say he saw the Nedelchoff car in particular. Whether this discharged his duty to make reasonable use of his senses to detect probable danger, considered in connection with all the surrounding circumstances, was strictly a matter for the jury. But even so, it is difficult for us to understand how such failure to keep a lookout could have been a proximate cause of the accident in question. The jury found that Nedelchoff negligently drove his car across the center line of the highway into that portion thereof reserved for east bound traffic, and that such conduct was a proximate cause of the accident. This must be so as otherwise there could have been no verdict against Nedelchoff. The testimony of the Nedelchoff witnesses to the effect that his car remained on the proper side of the center line of the highway is repudiated by the verdict, and all other evidence on the subject forces the conclusion that Nedelchoff's crossing the line and the subsequent collision with the Baldwin car were almost simultaneous. Under such circumstances it is obvious that a lookout, no matter how strict, could not have prevented the accident and, therefore, a failure so to do could not have been a proximate cause thereof.
On the question of the sufficiency of the evidence to sustain the verdict against them, the appellants Lanter and Lee Brothers, Inc., lastly contend that the jury found against the 11. appellee on her charge that they crowded Baldwin and thereby forced him over the center line and into the way of Nedelchoff's car, as otherwise the verdict would and should have been against them alone. That under such circumstances both Nedelchoff and Baldwin would have been free from negligence proximately causing the accident. We do not believe that the verdict against Nedelchoff and Baldwin can be so construed. Such verdict does find that Nedelchoff negligently crossed the center line and that such negligence was a proximate cause of the accident, but it is not necessarily a finding that the appellants Lanter and Lee Brothers, Inc., did not crowd the Baldwin car. There is evidence tending to prove crowding to the extent of actual contact with the Baldwin car, and we cannot say, as a matter of law, that the jury could not have reasonably inferred therefrom that, except for such crowding and contact, Nedelchoff would have passed in safety even though over the center line of the highway. The evidence most favorable to the appellee indicates that the front end of the Nedelchoff car was "just off" the center line and in the inner east bound lane. The traffic lanes involved are each 10 feet wide and the inference that there would have been room for the free passage of the Baldwin car, except for its being crowded over by the truck, is not unreasonable. We are, therefore, constrained to hold that on the issue of negligent crowding there is evidence sufficient to sustain the verdict against the appellants Lanter and Lee Brothers, Inc. Although the negligence of Nedelchoff in driving over the center line of the highway and that of Lanter in crowding the Baldwin car, are separate and independent acts of negligence, there is evidence that each continued up to the moment of impact and that they are, therefore, concurrent and each may be considered a proximate cause of the accident.
The appellants Lanter and Lee Brothers, Inc., challenge the legality of the verdict as to them on the grounds that it is inconsistent within itself and therefore cannot stand. 12-15. This contention is the summation of the following argument: Either Baldwin or Nedelchoff got over the center line of the highway else the collision could not have occurred. That the only negligence on the part of Nedelchoff of which there is any evidence is that he got over said line and that therefore the verdict against him definitely places him there. That there is no actionable negligence charged or proven against Baldwin that could possibly have been the proximate cause of the accident except that he drove over said line onto Nedelchoff's side of the highway. That there is absolutely no evidence that both were over the line nor can such fact be legitimately inferred because all of the evidence on the subject places one or the other of them there and not the other. Therefore, the jury, in order to hold Nedelchoff, finds that he negligently drove over the line and, in order to hold Baldwin, finds that he did the same thing. That by any rule the jury cannot, in the same case and on the same conflicting evidence, find the fact one way as to one alleged wrongdoer and another way as to a second wrongdoer. That the only actionable negligence proven against Lanter and Lee Brothers, Inc., is that they crowded and knocked Baldwin's car over the center line into Nedelchoff's path and, therefore, the verdict against them necessarily exonerates Baldwin and Nedelchoff of all blame. We concede that this argument is conclusive if the premises upon which it is based are tenable. There is evidence in the record, and reasonable inferences to be drawn therefrom, to support the following facts: The highway involved customarily bears heavy traffic and, at the time of the accident in question, there was a steady stream of motor vehicles going west in both lanes north of the center line. That with such knowledge Baldwin attempted to pass Lanter and that Lanter tried to prevent him from doing so by increasing his speed. This resulted in what the Nedelchoff witnesses characterize as a race in which both vehicles reached a speed of 50 miles per hour and in which the Baldwin car and the truck crowded each other to the extent of actual contact whereby the Baldwin car was thrown to the left or north. At the same time Nedelchoff negligently drove his car over the center line and the collision in controversy occurred. Except for such crowding and contact by and between the truck and the Baldwin car, Nedelchoff would have passed in safety even though over the line and except for Nedelchoff's being over the line the Baldwin car would not have struck him. We cannot say, as a matter of law, that racing and crowding, under the circumstances disclosed by the evidence, was not negligence. The question was therefore strictly within the province of the jury. It is our duty to uphold the jury's verdict if it can be done on any theory supported by the evidence and law of the case, and, on the above theory, which we believe is supported by evidence, the verdict against all of the appellants is not inconsistent. If it can be said that the complaint states no such theory of liability, we must regard the same as amended to conform to the case established by the evidence in order that the verdict may be upheld.
As heretofore stated the appellant Nedelchoff testified that he at no time crossed the center line of the highway but, on the contrary, remained at all times in his own proper lane of 16. traffic. A court reporter testified for the appellants Lanter and Lee Brothers, Inc., to the effect that she had taken Nedelchoff's statement in the hospital shortly after the accident in which statement he admitted that, to avoid a car ahead of him in his lane, he applied his brakes and skidded over the center line of the highway into Baldwin's path. Apropos to this situation the court, on its own motion, gave instruction No. 11 which reads as follows:
"The credibility of any witness may be impeached by proof that he had made statements out of court contrary to and inconsistent with what he testified to at the trial concerning matters material and relevant to the issues joined; and in this case if any witness has been thus impeached about material matters relevant to the issues in this case, then you have a right to reject all his testimony except insofar as he has been corroborated by other credible evidence in the case.
"A witness may be asked for the purpose of impeaching his testimony, if he made certain statements at another time, inconsistent with his testimony, but such evidence does not tend to establish the fact of the truth of the statement so made.
It simply goes to the credibility of the witness." The appellants Lanter and Lee Brothers, Inc., insist that this instruction is erroneous because Nedelchoff was a party defendant in the action below, and his admissions were direct and substantive evidence of the facts admitted and the jury's consideration of them could not be limited to the purpose of impeachment. We think the appellants' position is correct and the instruction, as applied to testimony tending to impeach a party to the action, is erroneous. Acton v. Lowry (1941), 109 Ind. App. 581, 34 N.E.2d 972; Helton v. Mann (1942), 111 Ind. App. 487, 40 N.E.2d 395; Hill v. Newman (1874), 47 Ind. 187. We fail to see, however, in what manner the appellants were harmed by the error. Nedelchoff's admissions, considered as direct evidence, merely tended to prove that he got over the center line of the highway which, as we have heretofore pointed out, the jury found to be the fact without the benefit of such evidence.
Instruction No. 1, given by the court on its own motion, enumerates the specific acts of negligence charged against the appellants Lanter and Lee Brothers, Inc., among which is 17, 18. that of increasing the speed of their truck while another vehicle was attempting to pass and then concludes with the following words: "The Court has instructed you as to the issues joined in this case. It is not necessary that plaintiff prove all of the allegations of negligence against a defendant before you can find such defendant guilty, it being sufficient that he prove any one of the charges of negligence against such defendant by a fair preponderance of all of the evidence." This instruction in effect bound the jury to accept the naked fact of increasing one's speed while another is attempting to pass on a four-lane highway as an act of negligence in itself. As we have indicated earlier in this opinion, such fact could not constitute negligence at common law unless an ordinarily prudent person would not have done so under the same or similar circumstances and, their being no statutory prohibition involved, there can be no negligence predicated upon the violation of a duty imposed by statute. It seems clear to us that the instruction either invades the province of the jury by assuming that, under the circumstances of the instant case, an ordinarily prudent person would not have increased his speed while Baldwin was attempting to pass or erroneously assumes that § 47-2001, Burns' 1940 Replacement, § 11189-62, Baldwin's Supp. 1939, applies to four-lane highways and its violation was negligence per se. In either event the instruction was erroneous and, as the appellants Lanter and Lee Brothers, Inc., did not deny the charge, it is obvious that such instruction was a potent instrument of prejudice to their defense.
It is true that the court, by its instruction No. 29, correctly informed the jury that there was no "statutory prohibition against the driver of the truck increasing the speed 19, 20. while Baldwin was in the act of passing the truck," but in its instruction No. 24 the court expressly tells said jury that "speeding up" when an overtaking driver desires to pass constitutes reckless driving as defined by statute and therefore is negligence per se.
These two instructions are hopelessly at odds and, when taken in connection with instruction No. 1, must inevitably have led to confusion in the minds of the jury as to the law on the subject. It was held in Pittsburgh, etc., R. Co. v. Boughton (1924), 81 Ind. App. 129, 142 N.E. 869, that error in giving an erroneous instruction is not cured by giving another instruction in conflict therewith, especially where the effect would be to confuse the jury and leave it in doubt as to which instruction should be followed. It is suggested by the appellee that instruction No. 24 was given to the jury at the instigation of the appellants Lanter and Lee Brothers, Inc., as it is identical with one tendered and requested by them and, therefore, they cannot be heard to complain of invited error. This point would be well taken except for the fact that the instruction tendered by said appellants, and adopted by the court as its own, correctly states the law and constituted a futile effort to cure error and not to invite it. For error in instructing the jury as above indicated the judgment against the appellants Lanter and Lee Brothers, Inc., must be reversed, and it becomes unnecessary for us to pass upon the question of their right to a new trial on the grounds of newly discovered evidence.
As to the appellant Nedelchoff's contention that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, what we have said concerning these questions as applied to the appellants Lanter and Lee Brothers, Inc., is also applicable to Nedelchoff. In this connection the appellant Nedelchoff raises but one additional question. He contends that, even though the evidence may not show that the appellee's decedent Jones was a paid passenger in the Baldwin car, it does disclose that, at the time and place of the accident, Jones and Baldwin were engaged in a joint enterprise and, therefore, Baldwin's negligence must be imputed to Jones, and as such negligence contributed to the accident the appellee cannot recover.
At most the evidence discloses nothing more than a custom or practice whereby Baldwin had taken Jones to work in his car frequently for a period of two or three years prior to 21, 22. the accident, and on 15 or 20 occasions each year Jones had purchased gasoline for use in the Baldwin car. As between the parties to a joint enterprise there must be a contract express or implied, 30 Am. Jur. 681, § 9, and in the instant case the evidence is direct and undisputed that there was no agreement or understanding whatever between Jones and Baldwin with reference to the subject. It must further appear that a right of mutual control over the subject-matter of the enterprise, or over the property engaged therein, exists. "Particularly is this true with respect to negligence cases in which the element of joint adventure is present; in that class of cases unless each has some voice and right to be heard in the control or management of the enterprise, a joint enterprise is not deemed to exist." 30 Am. Jur. 682, § 11. We find no evidence in the record to support the contention that a joint adventure is here involved.
The appellant Nedelchoff next complains that the court's instruction No. 1 does not correctly define the issues as to him as he pleaded that he had no knowledge concerning the 23. facts alleged in the complaint's rhetorical paragraphs 1, 2, 3, 4, 7, 8, 9, 10, 11, 12, 15 and 16, which placed the burden on the appellee of proving the allegations of each of them by a fair preponderance of the evidence, whereas instruction No. 1 told the jury that the facts therein alleged were undisputed and required no proof. The appellant's position is true as to rhetorical paragraphs 1, 2, 3, 4, 8 and 9, but as to all others the jury was instructed that the burden of proving the allegations thereof by a fair preponderance of evidence rested upon the appellee. Rhetorical paragraphs 1 and 2 of the complaint concern the appointment of the appellee as administratrix of the decedent's estate and whom he left as his next of kin. The allegations thereof were proven by the undisputed testimony of the appellee herself. Rhetorical paragraphs 3 and 4 pertain to the corporate existence of Lee Brothers, Inc., and Lanter's agency. The facts therein alleged were admitted by the parties involved and are immaterial as far as the appellee's case against the appellant Nedelchoff is concerned. Rhetorical paragraphs 8 and 9 concern the simultaneous approach of all the appellants to the place of accident and the allegations thereof are amply supported by evidence. It is therefore obvious that the appellant Nedelchoff was not harmed by the extremely technical error upon which he relies in respect to the court's instruction No. 1.
The correctness of instruction No. 5 is challenged on the theory that, although purporting to define burden of proof, it actually defines preponderance of the evidence and is 24. therefore confusing. The appellant seeks to take advantage of the inadvertence of the court in using the words "by the burden of proof" in the first sentence of the instruction when it is apparent that the words "by preponderance of the evidence" were intended to be used. The instruction accurately defines the term "preponderance of the evidence" and we cannot see how the jury could have been misled by the mere misnomer of a legal principle otherwise correctly and concisely set out.
Instruction No. 23 is questioned by the contention that it states the statutory law applicable to two-lane highways only and, therefore, is outside the issues. There is nothing in 25. the statute involved (§ 47-2014, Burns' 1940 Replacement, § 11189-75, Baldwin's Supp. 1939) that so limits its application, and we have been referred to no authority that so holds. By its phraseology and terms it seems as appropriate of application to four-lane highways as to those of two-lanes only.
The appellant Nedelchoff contends that he was entitled to a peremptory instruction at the close of the appellants' case directing a verdict in his favor. This question is fully disposed of in our discussion of the sufficiency of the evidence to support the verdict and we see no error in the court's refusal to give such instruction. Appellant's instructions 3 and 5, tendered and refused, deal with the law of joint adventure or enterprise. As we have heretofore stated, there is no evidence to warrant the submission of such issue to the jury and the instructions were properly refused.
Lastly the appellant Nedelchoff asserts error in the court's refusal to give his tendered instructions 4 and 9. Either or both of these instructions, if given, would have submitted to 26, 27. the jury the question of the appellant's negligence in connection with the sudden skidding of his automobile across the center line of the highway. We think, without doubt, the sudden skidding of an automobile, in and of itself and unattended by prior negligence from which such skidding proximately results, does not constitute negligence. Pickering v. Corson (1940), 108 F.2d 546; Herman v. Sladofsky (1938), 301 Mass. 534, 17 N.E.2d 879; Kohn v. B.F. Goodrich Co. (1941), 139 Ohio St. 141, 38 N.E.2d 592. The appellant contends that as this was one of the theories of his defense he was entitled to have it submitted to the jury, and, as no instruction given by the court covered the subject, it was error to have refused one that did. The point is well taken if, in fact, such was the theory of his defense and if there is any evidence in the record upon which such defense can be predicated. The appellant Nedelchoff testified that at no time did he cross the center line of the highway, and he and all witnesses in his behalf stoutly maintained such position throughout the trial. A court reporter, who had previously taken Nedelchoff's statement, was called to impeach him in that respect. Said reporter's testimony on the subject has heretofore been set out, and said appellant now contends that the same should be regarded as substantive evidence of the fact that he applied his brakes to avoid striking a car in front of him, which had suddenly slowed down, with the result that he unavoidable skidded across said center line. This evidence was admitted solely on the theory that, if true, it constituted proof of prior statements inconsistent with the appellant's testimony at the trial and, therefore, tended to impeach him. Under no principle of the law of evidence, of which we have knowledge or to which we have been referred, can such testimony be considered substantive evidence of unavoidable skidding. Viewed in such light the appellant's statement is clearly a self-serving declaration made under circumstances not permitting of cross-examination and not a part of the res gestae. If there seems to be inconsistency in our holding that this evidence is substantive as to the appellants Lee Brothers, Inc., Lanter, and Baldwin but merely impeaching in its nature as to the appellant Nedelchoff, it should be borne in mind that, in reference to the positions of their respective vehicles at the moment of the accident, the interests of the appellants are adverse, and as to all of the appellants except Nedelchoff the testimony in controversy constitutes an admission of the latter as to the fact that his car was over the center line of the highway but as proof of his defense it is hearsay and self-serving. We see no error in the refusal of the instructions involved.
The judgment is affirmed as to the appellant Nedelchoff and reversed as to the appellants Lanter, Lee Brothers, Inc., and Baldwin with instructions to sustain their respective motions for a new trial.
NOTE. — Reported in 54 N.E.2d 108.