BOHBRINK v. Malone

• Decision Date: 18 September 1926
• Docket Number: No. 3674.,3674.
• Parties: BOHBRINK v. MALONE.
• Court: U.S. Court of Appeals — Seventh Circuit

14 F.2d 601 (1926)

BOHBRINK v. MALONE.

No. 3674.

Circuit Court of Appeals, Seventh Circuit.

May 18, 1926.

Rehearing Denied September 18, 1926.

Adlai H. Rust, of Bloomington, Ill., and Rudolph J. Kramer, of East St. Louis, Ill., for plaintiff in error.

Dan McGlynn, of East St. Louis, Ill., for defendant in error.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

So far as is necessary for the consideration of the only question raised in this case, the undisputed facts are as follows:

On October 6, 1924, defendant in error, with her husband and four other persons, was traveling in a Ford car over route No. 15 of the highway system of Illinois. The general direction of this highway is east and west, but at the point where the accident happened it runs north and south. The concrete portion of the highway is 18 feet wide, and at the point in question there was ample space on either side of the concrete surface to safely run and stand a car for the purpose of repairs. While the car was moving north about 10 o'clock at night, the driver noticed that the engine was not operating properly. To use his own language, "the coil began to sing" and the car "went dead and stopped." He drove it off the pavement "as far as he could run it before it stopped." This left the car standing about 1½ to 2 feet over the east edge of the pavement, or about one half on the paved part and the other half on the shoulder or dirt portion of the road. The defendant in error got out on the right side of the car, and one of the passengers held a flash light for the driver to fix the coil. The driver asked his wife, defendant in error, to come around on the west or pavement side of the car and hold the flash light for him, which she did. The car was of an old type, and when the engine went dead the lights went out. Defendant in error stood on the pavement side of the car with her left foot on the running board and her right foot on the pavement. Her husband was in the car working on the coil. While they were in this position, she heard and saw the car of plaintiff in error approaching from the south. As it approached, defendant in error waved the flash light to stop or warn the driver of it, but plaintiff in error, not seeing the signal, came on, his car struck the right leg of defendant in error and she was seriously injured. The Ford car was not touched.

The declaration charged that the plaintiff in error so carelessly, negligently, and improperly drove his car that he ran into and struck defendant in error while she was using due care for her own safety. Plaintiff in error pleaded contributory negligence, alleging that defendant in error did not use care for her own safety. The case was tried by a jury, At the close of all the evidence plaintiff in error requested the court to instruct the jury to find him not guilty. Refusal to so instruct is the sole error insisted upon, and upon this it is urged that upon the undisputed facts defendant in error was so...