Bartolucci v. Falleti

• Decision Date: 11 March 1943
• Docket Number: No. 26851.,26851.
• Citation: 46 N.E.2d 980,382 Ill. 168
• Parties: BARTOLUCCI v. FALLETI.
• Court: Illinois Supreme Court

382 Ill. 168

46 N.E.2d 980

BARTOLUCCI

v.FALLETI.

No. 26851.

Supreme Court of Illinois.

Jan. 19, 1943.

As Modified on Denial of Rehearing March 11, 1943.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; Robert E. Larkin, Judge.

Action by Josephine Bartolucci against Peter Falleti for injuries sustained while riding as a guest in plaintiff's automobile. From a judgment for plaintiff after trial court denied defendant's motions for directed verdict, defendant appealed to the Appellate Court and judgment was reversed, 314 Ill.App. 551, 41 N.E.2d 777, and leave to appeal was granted plaintiff by the Supreme Court.

Judgment of Appellate Court affirmed.

Hollerich & Hurley, of La Salle, for appellant.

Burrell & Burrell, of Freeport (David M. Burrell, of Freeport, of counsel), for appellee.

WILSON, Justice.

Plaintiff, Joesphine Bartolucci, brought this action in the circuit court of La Salle county against defendant, Peter Falleti, to recover damages for personal injuries sustained on January 30, 1937, near the city of Peru, while riding as a guest in defendant's automobile. The court denied defendant's motions for a directed verdict, made at the close of plaintiff's evidence and again at the close of all the testimony. The jury returned a verdict of $12,500 in favor of plaintiff and judgment was rendered on the verdict. Upon appeal, the Appellate Court for the Second District reversed the judgment, without remanding, and entered judgment for defendant and against plaintiff. Bartolucci v. Falleti, 314 Ill.App. 551, 41 N.E.2d 777. The cause is here upon leave to appeal granted by this court.

The accident occurred January 30, 1937, about 10:30 P. M. on a winding gravel road approximately one mile south of Peru. While descending a hill which curved abruptly, southwesterly toward Cedar Creek bridge, the left rear wheel of the 1931 Chevrolet automobile driven by defendant came off. The car toppled over an embankment and dropped fifteen or twenty feet to the bed of Cedar Creek. Upon examination of the wheel after the accident it was found that all bolts except one had been sheared from the hub. The hub or drum from which the wheel had become detached was still on the car.

The complaint, consisting of five counts, was based upon the alleged wilful and wanton misconduct of defendant. Each count alleged his previous knowledge of the surrounding circumstances and conditions, and that he acted with wilful disregard of the consequences. The first count charged that the highway, at the scene of the accident, curved abruptly to the right, making nearly a right-angled turn and immediately thereafter passed across a bridge over Cedar Creek; that the road was approximately fifteen feet wide, high in the center, and constructed on a down-grade; that for 250 feet north and northeast of Cedar Creek bridge the road was covered with ice and very slippery; that the night was dark and rainy, and that the lights of the automobile penetrated but a few feet. The second count charged the reckless operation of the car by defendant in driving along the narrow and winding road toward Cedar Creek, down the grade and around the curve at a high and dangerous rate of speed, and without reducing his speed, contrary to section 48 of an act in relation to the regulation of traffic, approved July 9, 1935, Ill.Rev.Stat.1941, chap. 95 1/2, par. 145. The remaining counts alleged violations of section 49 and paragraph (a) of section 102 of the same act, Ill.Rev.Stat.1941, chap. 95 1/2, pars. 146 and 199, in driving the car downgrade and around the curve at a high and dangerous rate of speed, and without decreasing the speed, and in driving a car in such unsafe and defective condition as to endanger any person riding therein.

Plaintiff and Lena Mariani met defendant and his friend, Orlando Falassi, the evening of the accident at a tavern in Dalzell. The two couples left Dalzell in defendant's automobile to attend a President's birthday ball at Cedar Point. Lena Mariani sat to the right of defendant, the driver. Plaintiff and Falassi occupied the rear seat, plaintiff being directly behind defendant. From Dalzell they drove through Peru, where defendant drove down a steep hill in second gear, stopped before crossing some railroad tracks, and then drove south on a gravel road. It had rained earlier in the day, and the evening was not cold. According to plaintiff, from the time they left Dalzell until the accident occurred, the car was running smoothly, and there was nothing in its operation suggestive of any mechanical defect; that shortly before the accident she noticed ‘something that felt like a thump’ and felt the car drop on one side; that in ‘maybe a second or something like that’ the car went over the embankment; that she did not know exactly how fast defendant was driving just prior to the accident, but that he did not lessen his speed, which she estimated to be from thirty to thirty-five miles an hour. She further testified that the lights on the car were burning; that she could see possibly the width of the courtroom and that although she was watching the road she did not notice whether there was any ice on it immediately north of the bridge. She added that ‘after the thump I know the car wasn't going like it was before. I don't remember whether it continued straight forward or swerved off to the left. * * * I don't recall whether or not Falleti [defendant] attempted to do anything with the car at the time of the thump.’

Gus J. Hoffman, commissioner of highways of the township of Peru, testified the road approaching Cedar Creek bridge from the north sloped south from a point about 400 feet north of the bridge on a thirty per cent grade; that he had occasion to travel over this road from the north about three o'clock on the afternoon of January 30, 1937, and that the road was icy. Joseph Gromann, a State highway policeman, testified he found the car at the bottom of Cedar Creek, facing southwest; that it had rained earlier in the evening, and that ‘the road was slippery in spots going down hill. Where the gravel was smooth it was slippery driving, and where the gravel was rough it wasn't so bad driving; there would be a little patch of ice where it was smooth.’

Evidence introduced by defendant disclosed that on the day of the accident the motor of his car had been repaired, and the bearings and connecting rods tightened. A mechanic testified he spent about five or six hours completing the overhauling, and that, in returning the car to defendant in Oglesby from Peru about eight o'clock P. M., he ‘didn't notice anything wrong with the brakes at any time while I was in it; the brakes were good. The car did not shimmy from side to side or wobble on the highway. I didn't hear any noise of any kind back in the hub-cap on any wheel of the car.’

Defendant testified that prior to delivering his automobile to the mechanic he had never observed anything wrong with any wheel; that he had never taken the wheels off the car, except when he had changed a tire six weeks before; that as they approached the incline (which he called a ‘slight slope’), before coming to Cedar Creek bridge, he was driving about twenty-five miles an hour; that he decreased his speed somewhat, ‘I let up on the gas;’ that there was some ice on the road, extending back about fifty feet from the bridge; that as they were descending this incline he noticed the car drop and that it was pulled to the left; that, with both hands on the...