Betzold v. Erickson

• Decision Date: 16 May 1962
• Docket Number: Gen. No. 10390
• Citation: Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342 (Ill. App. 1962)
• Parties: Fannie BETZOLD and Donald Betzold, Plaintiffs-Appellants, v. Paul G. ERICKSON and Lillian Erickson, Defendants, Paul G. Erickson, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 342

182 N.E.2d 342

35 Ill.App.2d 203

Fannie BETZOLD and Donald Betzold, Plaintiffs-Appellants, v. Paul G. ERICKSON and Lillian Erickson, Defendants Paul G. Erickson, Defendant-Appellee.

Gen. No. 10390.

Appellate Court of Illinois, Third District.

May 16, 1962.

Roberts & Kepner, Springfield, for appellants.

White & Hickman, Hillsboro, Paul M. Hickman, Hillsboro, guardian ad litem for Paul G. Erickson, a minor, for appellee.

ROETH, Presiding Justice.

Suit was brought by Fannie and Donald Betzold, husband and wife, against Paul Erickson and his mother, Lillian Erickson, for property damages and personal injuries sustained by plaintiffs in a collision between the automobile of Donald Betzold, being driven by Fannie Betzold, and a truck driven by Paul Erickson. A jury trial resulted in a verdict for defendants against plaintiffs. Plaintiffs filed a post trial motion for judgment notwithstanding the verdict and in the alternative for a new trial, which motion was denied and judgment entered accordingly. Donald Betzold was not present at the time of the occurrence, but is the owner of the automobile and therefore interested in this proceedings. Plaintiffs' post trial motion was not directed to the verdict in favor of Lillian Erickson, and no appeal was taken from the judgment in her favor, therefore Paul Erickson will be referred to here as defendant.

The complaint of Fannie Betzold charges defendant with one or more of the following acts of negligence:

'a. Drove onto left one-half of the roadway.

'b. Failed to pass to the right of the plaintiff and failed to give to the plaintiff one-half of the mainly traveled portion of the highway.

'c. Failed to keep a proper lookout.

'd. Failed to keep the truck under control.

'e. Drove at a speed that was greater than was reasonable and proper having regard to the narrowness of the road and the dusty condition and surface thereof.

'f. Drove onto left one-half of the road and into the front of plaintiff's car which was stopped.'

Fannie Betzold seeks damages for personal injuries and in a separate count her husband seeks damages for damage to his car, medical expenses for his wife and loss of consortium.

The record before us discloses that on August 28, 1959, defendant, then 13 years old, drove the family pickup truck, with his mother's permission, to meet a friend, Lawrence Johnson. The two boys went swimming and then proceeded home, each in their own vehicle, the Johnson boy first, followed by the defendant. They were driving west along a country road and at the time they reached the place where the collision occurred defendant was following Johnson some 100 to 150 yards to the rear of the Johnson car, traveling between 30 and 35 miles per hour. The road was of graved and dirt construction and had recently been scraped in preparation for oiling of the surface and was quite dusty. The road was 18 feet in width, with a ditch about 18 inches deep on the north and south side. The road inclined slightly, so that as defendant proceeded in a westerly direction he was driving down a slight decline.

Fannie Betzold was driving her husband's car in an easterly direction, delivering dinner to her husband who was attending some field event in the area. As she proceeded up the road, she drove in the center of the same until the Johnson car approached when she pulled over to her right and slowed down. The Johnson car raised considerable dust, and being unable to see, she pulled over to the right as close to the ditch as possible and stopped. The Johnson car proceeded on west without in any way coming in contact with the Betzold car. Up to this point, the testimony is not contradicted, neither party to the suit could see the other and no other evidence was offered to contradict or corroborate this testimony.

Fannie Betzold then further testified that at this point she saw defendant's truck some 250 feet east of her, coming down the middle of the road. It then swayed to its left, then to the right, then back to the left, ran its left wheels into the ditch on the south side of the road, came down the ditch 30 to 40 feet and collided with her automobile. Defendant's testimony is substantially the same, except for distances. He testified that he first saw the Betzold car when the dust of the Johnson car lifted, and it was 75 to 100 feet away. He hit his brakes, swerved to the left, then the right, then back to the left into has south ditch and rode the ditch with his left wheels for about 15 feet and ran into the Betzold car. Plaintiff Fannie Betzold testified she did not move from the time she stopped when the Johnson car was passing until defendant's truck struck her, throwing her back. Defendant testified he did not watch the Betzold car continuously and could not say if it was stopped or moving. When asked where plaintiff's car was in the road when he first saw it, defendant testified, 'I don't know exactly but it almost had to be in the middle. I don't know for sure'. The defendant then gave the following testimony:

'Q. What makes you think it was in the middle?

'A. Because to hit her I would have to go up over the bank almost to hit her.'

'When I saw the Betzold car I applied my brakes.

'Q. Why did you put on your brakes?

'A. Because I saw her in the road.

'Q. Was she in such a position that you thought you should put on your brakes?

'A. Yes.

'Mr. Kepner: 'If the court please, I object. The court: sustained.

'Mr. Hickman: Q. Tell the court and jury why you put on your brakes.

'A. Well, she was more on my side of the road than on her side and if she would have been on her side of the road I would not even have had to apply my brakes.'

The right front of defendant's truck struck the right front of the Betzold car. Defendant's truck rolled over on its side immediately after the collision and the Betzold car was pushed back some 5 feet. Plaintiff Fannie Betzold testified that after the collision she said to defendant, 'Why didn't you stay on your side of the road?', and that he said something about going too fast. Defendant did not remember this conversation.

Counsel for plaintiffs contend that the trial court should have found (1) that defendant was guilty of negligence and plaintiffs were free of contributory negligence as a matter of law or (2) that the verdict is against the manifest weight of the evidence or (3) that error was committed in giving defendant's instruction #12. We regard the last mentioned contention as decisive of this case.

The trial court, at the request of counsel for defendant and over specific objection by counsel for plaintiffs gave the following instruction:

'No. 12. When reference is made in these instructions to any charge that the defendant, Paul G. Erickson, was negligent it is meant that this defendant is charged of having failed to use that degree of care, just before and at the time of the occurrence in question, which an ordinarily prudent child of his age, experience, intelligence and capacity would have exercised for the safety of others under the same or similar circumstances.'

Counsel for defendant seek to justify this instruction by directing our attention to Instruction #10.05 on page 61 of...