Opinion
Ralph Bower, Stephen C. Bower, Kentland, for defendant-appellant.
Theodore L. Sendak, Atty.Gen., Robert E. Dwyer, Deputy Atty.Gen., Indianapolis, for plaintiff-appellee.
ON PETITION FOR REHEARING
HOFFMAN, Judge.
This cause is pending before the court on appellant's petition for rehearing. One portion of such petition questions whether certain facts stated by the court in its opinion are supported by the record herein.
The court has examined each of such allegedly erroneous statements of fact, and finds that the record herein supports each as a statement of the facts and reasonable inferences therefrom most favorable to appellee-State of Indiana.
Defries' preliminary contention is that the court erred in stating,
"Defries then failed to stop at the intersection, thereby obliging Osborn to stop to avoid him."
On direct examination Jim Osborn, a witness for the State, testified:
"... I was driving but then when I seen (sic) this other car coming there was, there was a stop sign on his street but he didn't stop so I stopped...." (Transcript page 186, lines 4-6.)
Appellant's next contention is that the court erroneously stated, "Defries' auto as it sped through the intersection [was] straddling the center line."
Officer Robert R. Duncan testified, on direct examination, that "the skid marks" made by Defries' automobile "straddle[d] what would be the middle of the road." (Transcript page 139, line 9.) Further testimony that Defries was "left of center" is found on page 196, line 2 of the transcript. The court did not state that Defries' vehicle was left of painted lane markings, but rather that it straddled the center line of the road.
Defries also contends that the court erroneously stated:
"Defries skidded approximately sixty-eight feet before striking Rhonda and throwing her an additional sixty-seven feet from the point of impact."
Appellant asserts that the record contains no evidence as to such distances, that the source of the court's statement was the opening statement of an attorney, and that "perhaps the Court's staff has confused these statements with the evidence." Officer Duncan further testified, without objection, on direct examination:
"I determined through my investigation of reference to the skid marks previously mentioned and through discussion with witnesses the approximate location of the victim when she was struck and from the blood stains determined where the victim lit (sic) on the roadway. I also measured the distances there. I measured the distances concerning the relation of the different objects involved in the accident and I found that from the starting point of the skid marks to the closest approximation that I could arrive at, the location of the victim when struck, to be approximately sixty-eight feet. And from that point of impact to the point where Rhonda Justice was found lying on the roadway was an additional sixty-seven feet." (Transcript page 139, lines 17-28; page 140, lines 1-3.)
Appellant's final contention in this regard is that the court erroneously stated that he drove his automobile through a stop sign. However, the evidence in the record before the court most favorable to the State, and the reasonable inferences therefrom, support this statement. As quoted hereinabove, witness Jim Osborn stated:
"... there was a stop sign on his street but he didn't stop so I stopped...." (Transcript page 186.)
On cross-examination, Osborn was shown a photograph of the intersection and street as Defries would have viewed it after traveling almost into the intersection. Osborn correctly stated that no stop sign appeared in such photograph. However, such photograph did not depict the area where a stop sign could have been located controlling traffic proceeding as Defries had. Rather, it only tended to show that there was no such sign on the opposite side of the intersection. While Osborn later testified he was unsure of the existence of the stop sign, the facts and inferences most favorable to the appellee herein support this court's statement relative thereto.
The other matters raised by appellant in his petition for rehearing merit no comment. Appellant's petition for rehearing is denied in all respects.
Petition denied.
STATON, P.J., and GARRARD, J., concur.