From the Allen Superior Court, Aifred W. Moellering, Judge.
Hoffman, J. Garrard, J., concurs; Staton, P.j., concurs in result and Dissents in part with opinion.
Plaintiff-appellant Jack Fielitz brought an action against defendant-appellant Theresa S. Allred injuries sustained while riding as a passenger in an automobile driven by Allred. Trial to the court resulted in the granting of appellee's motion for dismissal at the close of appellant's case-in-chief. Appellant contends on appeal that the Indiana Guest Statute is unconstitutional and that the judgment of the trial court is contrary to the evidence and contrary to law.
Appellant's contention regarding the constitutionality of the Indiana Guest Statute was answered adversely to appellant in Sidie v. Majors (1976), 264 Ind. 206, 341 N.E.2d 763, wherein our Supreme Court held that the guest statute does not violate Art. 1, § 23 of the Constitution of Indiana or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. See also, BRADY v. Acs (1976), 264 Ind. 285, 342 N.E.2d 837.
The next issue presented for our review concerns the proper test to be applied under Indiana Rules of Procedure, Trial Rule 41(B).
Appellant contends that the trial court may
only consider the evidence and reasonable inferences most favorable to the nonmoving party, 3 Harvey, Ind. Pract. -- Rules of Civ. Proc., Civil Code Sommission Comments -- Rule 41(b), at 212 (1970); Ohio Casualty Ins. Co. v. Verzele, et al. (1971), 148 Ind. App. 429, 267 N.E.2d 193, whereas appellee asserts that the trial court may weigh the evidence and decide for whom it preponderates. 3 Harvey, Ind. Pract. -- Rules of Civ. Proc., Author's Comments -- 42.2, at 217 (1970); Emerson Electric Co. v. Farmer (5th Cir. 1970), 427 F.2d 1082; Ellis v. Carter (9th Cir. 1964), 328 F.2d 573.
The resolution of this question is controlled by our decision in Building Sustems, Inc. v. Rochester Metal Prod., Inc. (1976), 168 Ind. App. 12, 340 N.E.2d 791. There we set forth the test to be applied under Trial Rule 41(B), supra, its comparison to the Federal rule, and our scope of review when considering such motions on appeal:
"The language of this rule requires the trial court to consider only the evidence and inferences most favorable to the non-moving party in ruling upon such a motion. The trial court may not weigh the testimony of one witness against the conflicting testimony of another witness, nor may it weigh conflicting portions of the testimony of the same witness. Ohio Casualty Ins. Co. v. Verzeie et al. (1971), 148 Ind. App. 429, 269 N.E.2d 193. Thus, our Trial Rule 41(B), supra, differs from Federal Rule 41(b) in that under the Federal Rule the trial court need not consider only the evidence and reasonable inferences therefrom most favorable to the non-moving party, but is free to determine whether the plaintiff (or party, with the burden of proof) has established a right to recovery by a preponderance of the evidence during his case-in-chief. Emerson Electric CO. v. Farmer (5th Cir. 1970), 427 F.2d 1082; Ellis v. Carter (9th Cir. 1964), 328 F.2d 573, 577; Motorola, INC. v. Fairchild Camera and Instrument Corp. (DC Ariz., 1973), 366 F. Supp. 1173, 1176. See also: 9 Wright and Miller, Federal Practice and Procedure, § 2371, at 224-225; Moore's Federal Practice, Vol.5, § 41.13 , 1155-60.
"Because the trial court may consider only the evidence and inferences favorable to the non-moving party in ruling upon a motion for involuntary dismissal, this Court must
determine whether there was evidence introduced which would have been sufficient to support a recovery by such party when the granting or denial of such a motion is an issue on appeal. In the case at bat, then, the issue is whether the trial court properly found that there was no substantial evidence of probative value which would have supported the material allegations of the [plaintiff]." (At 14 of Ind. App., at 763 of 340 N.E.2d)
Tus we turn to the application of the standard in light of the evidence presented. The facts most favorable to the appellant passenger establish that on November 17, 1973, appellant was at Rack & Helen's Tavern when appellee and her brother-in-law Terrill Lee Dishong arrived at the bar some time between noon and 1:30 P.M. Appellant had never met appellee, but was an acquaintance of Dishong. While at the bar appellee, who was 19 years of age, drank two at the bar appellee, was 19 years of age, drank two or three beers; had a Discussion with Jon Nott regarding whose automobile was better (appellee had recently purchased a 1968 Camaro); and played several games of pool and pinball.
Appellant testified that as they were sitting in the bar talking, they decided to go for a ride in appellee's automobile. Appellee was driving the automobile and Terry Dishong was sitting in the front seat on the passenger's side. Appellant was sitting in the back seat behind appellee and Jon Nott was sitting in the back seat behind Dishong. Appellee began driving on Edgerton Road in Allen County, Indiana, and was approaching its intersection with Linden Road. Neither appellee nor appellant were familiar with the road. Edgerton Road is a straight, flat, blacktop road, and was dry on the day of the accident. The intersection of Edgerton and Linden is basically an "L" curve, but appears to be a "T" intersection because of the paved highway leading to Grant's warehouse parking lot. There is a warning sign sign of the impending curve approximately one-fourth mile from the intersection.
During the ride, everyone was engaged in conversation. At some point before the accident appellee reached a speed of 65-70 miles per hour. Appellee did not see the warning sign.
However, as they approached the intersection, Dishong warned appellee of the upcoming curve. Appellant testified that the warning came just moments before the collision itself and that appellee let up on the accelerator. He also recalled appellee gearing the car down at some time. Although appellant heard ...