Bartolucci v. Falleti

• Decision Date: 14 May 1942
• Docket Number: Gen. No. 9757.
• Citation: 314 Ill.App. 551,41 N.E.2d 777
• Parties: BARTOLUCCI v. FALLETI.
• Court: United States Appellate Court of Illinois

314 Ill.App. 551

41 N.E.2d 777

BARTOLUCCI

v.FALLETI.

Gen. No. 9757.

Appellate Court of Illinois, Second District.

May 14, 1942.

Appeal from Circuit Court, LaSalle County; Robert E. Larkin, Judge.

Action by Josephine Bartolucci against Peter Falleti, for injuries suffered while riding as guest in defendant's automobile. From a judgment for plaintiff, defendant appeals.

Reversed.

Duncan & O'Conor, of Ottawa, for appellant.

Hollerich & Hurley, of LaSalle, for appellee.

DOVE, Justice.

Peter Falleti has appealed from a judgment of the circuit court of LaSalle County for $12,500 against him in an action by Josephine Bartolucci for damages on account of personal injuries sustained by her in an automobile accident while riding as a guest in his car. The accident occurred at about 10:30 P.M. on the night of January 30, 1937, on a winding gravel road south of Peru. The left rear wheel of the car came off while descending a hill. The car left the road, went over an embankment fifteen or twenty feet into the bed of Cedar Creek, and turned over.

The Guest statute of this State (Ill.Rev.Stat. 1941, Chap. 95 1/2, par. 58a) as then in effect, provides: “No person riding in a motor vehicle as a guest, without payment for such ride, * * * shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, * * * or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, * * * or loss for which the action is brought.”

The only question presented here is whether at the time of the accident appellant was guilty of wilful and wanton conduct under the Guest statute. The complaint contains five wilful and wanton counts. Two negligence counts were stricken. The first count charges the road was approximately fifteen feet wide, higher in the center than at either side, with a sharp down grade, covered with ice and slippery for 250 feet northeast of the bridge over Cedar Creek, where it curves abruptly to the right over the bridge; that the night was dark and rainy and the car lights penetrated only a few feet; that appellant, with knowledge of the conditions and with a conscious indifference thereto, and with wilful disregard of the consequences, wilfully, wantonly and recklessly drove his car along the highway at that point at a rate of speed greater than was reasonable and proper having regard to the traffic and use of the way and so as to endanger the life and limb of the passengers in the car.

The second count charges wilfully and wantonly driving down grade and around a curve at a high and dangerous rate of speed, in violation of section 48 of “An Act in relation to the regulation of traffic” (Ill. Rev.Stat. 1941, chap. 95 1/2, par. 145) without slackening the speed.

The first additional count charges appellant's car was driven in such unsafe and defective condition as to endanger any person riding therein, in violation of paragraph (a) of section 102 of the same act; that appellant had knowledge, or by the exercise of reasonable care might have had knowledge, of such condition, and wilfully and wantonly drove his car when approaching and going around the curve without decreasing speed, in violation of section 49 and paragraph (a) of section 102. The second additional count is substantially the same.

The third additional count charges that the nuts attached to the bolts in the left rear hub or brake drum for holding the wheel to the hub were permitted to become loose, and that thereby the wheel, while in motion, caused the bolts to become worn and eventually sheared the bolts off the hub; that appellant had knowledge, or by the exercise of ordinary care would have had knowledge of the defective and dangerous condition. The charge of wilful and wanton driving at a high and dangerous speed is repeated.

At the close of the testimony for appellee the court overruled appellant's motion for a directed verdict. At the close of all the testimony a ruling on a like motion was reserved until after verdict, when it was overruled, as was appellant's respective motions for judgment notwithstanding the verdict and for a new trial.

There is no conflict in the testimony as to the determinative facts. Appellee resides in Dalzell. About 8:30 on the night of the accident she and her friend Lena Mariani went to Morandi's tavern in Dalzell about two blocks from her home. There they danced with appellant and his friend Orlando Falassi. They each had one small glass of beer. It was the night of the President's birthday ball and the boys invited the girls to go with them to Cedar Point. They got into appellant's 1931 Chevrolet car. Lena Mariani sat with appellant, who drove. Appellee and Orlando Falassi sat on the rear seat. She was on the left side back of appellant. She testified they were all perfectly sober. Just prior to the accident Lena Mariani and appellant were singing. They drove from Dalzell through Peru, where appellant drove down a steep hill in second gear, stopped before crossing some railroad tracks, and then drove south on the gravel road where the accident happened, about one mile south of Peru. The road at that point goes down grade for a distance of about 400 feet and then turns abruptly to the right across Cedar Creek bridge. As the car came down the grade the left rear wheel came off. Appellant attempted to keep it in the road, but was unable to do so. It drew over to the south side of the road and left the embankment about fifty to seventy five feet from the bridge. It turned over and dropped fifteen or twenty feet into the creek bed, where it landed pointed in the same direction it was going prior to leaving the embankment. It had rained about 7 o'clock that evening, but had not rained for some time before the accident. Where the gravel was smooth there would be a small patch of ice, but there was no ice where the gravel was rough. Appellant testified there was some ice extending back from the bridge fifty feet. None of the witnesses testified to seeing any ice on the road before the wheel came off. The road is from fifteen to twenty feet wide, narrowing at the bridge. A witness estimated the grade of the hill at 30%. He also estimated the grade of a neighboring hill at 60%, and that of the hill in Peru at 70%. A photograph in evidence indicates the grade of the hill where the accident happened is not nearly so steep as his estimate. Appellant travelled the road frequently and was familiar with it.

Appellee testified the car did not lessen speed before it went over the embankment. Appellant testified he did decrease the speed “some”; that he “let up on the gas.” He testified he was going about twenty-five miles an hour, not to exceed thirty. Appellee testified she did not know exactly how fast appellant was driving, but that she “judged” it was from thirty to thirty-five miles an hour.

All of the six bolts in the left rear wheel, except one, were sheared off at the hub. A State policeman testified he found two of the bolts on the hill about one hundred feet back from the bridge; that they “looked to me like they were loose and wore off, and they broke.” The bolts were not introduced in evidence, and there is no testimony that they were actually worn to a dangerous condition.

About six weeks prior to the accident appellant had a puncture in the left rear tire. He took the wheel off...