Fisher v. Wittler

• Decision Date: 17 April 1936
• Docket Number: Gen. No. 8936.
• Citation: 285 Ill.App. 261,1 N.E.2d 908
• Parties: FISHER v. WITTLER.
• Court: United States Appellate Court of Illinois

285 Ill.App. 261

1 N.E.2d 908

FISHER

v.WITTLER.

Gen. No. 8936.

Appellate Court of Illinois, Third District.

April 17, 1936.

Appeal from Circuit Court, Adams County; Fred G. Wolfe, Judge.

Suit by George Fisher, as administrator of the estate of Blanch Hopson Fisher, deceased, against Russell Wittler. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Wilson & Schmiedeskamp, of Quincy, for appellant.

Lancaster & Nichols, of Quincy, for appellee.

DAVIS, Justice.

This suit was commenced in the circuit court of Adams county to recover damages occasioned by the death of Blanch Hopson Fisher, plaintiff's intestate, alleged to have been caused by the negligent conduct of the defendant, Russell Wittler.

Upon a trial of said cause, the jury returned a verdict of not guilty, and the court, after denying a motion for a new trial, entered judgment upon the verdict in bar of the action. Appellant perfected an appeal to this court, and the cause was submitted at the October, 1935, term.

Owing to a misprision of the clerk of the circuit court in writing the record in said case, no final judgment was entered, and this court, being without jurisdiction to hear and determine the matters involved in said appeal, on November 16, 1935, in vacation after said October term, entered an order dismissing said appeal.

On November 29, 1935, appellant filed his motion with suggestions in support thereof, praying this court to vacate and set aside its order dismissing the appeal entered on November 16, 1935, and to reinstate said cause, and to permit appellant to suggest a diminution of the record and to file in this court as of July 2, 1935, the date of the filing of the original transcript of the record in this court, an amended and supplemental transcript of the record of the proceedings in said cause in the circuit court of Adams county, had on November 23, 1935, duly certified by the clerk of said court, including the order entered by said court on that day amending its judgment entered on January 21, 1935, nunc pro tunc as of said day, and the notice given and showing made for said amendment, and the said judgment of January 21, 1935, as amended, and also an abstract of said amended and supplemental transcript of record, and that this court hear said cause upon the merits.

Appellant also filed a petition for a rehearing of said cause on December 2, 1935, containing the same prayer for relief as prayed for in said motion. Said petition for rehearing and motion came on for hearing, and, no objections having been filed to the granting of said motion, and the court having found that a transcript of the record in said cause, duly certified under the hand of the clerk and the seal of said court, was filed in this court on July 2, 1935, that, although an order of dismissal of said appeal was entered in said cause on November 16, 1935, the court had jurisdiction of said cause, that the circuit court of Adams county, upon due notice to appellee, amended said judgment of said court entered on January 21, 1935, and that said petition for rehearing and motion should be granted, an order was entered granting said petition for rehearing and motion and reinstating said cause and permitting an amended and supplemental transcript of record to be filed nunc pro tunc as of date July 2, 1935, with an abstract thereof and ordering that said cause be taken for decision upon its merits in accordance with the order of submission entered at the October term, 1935, of this court.

Plaintiff in his complaint alleges: That the defendant was driving an automobile in a northerly and northeasterly direction over a public highway in Adams county, Ill., known as route No. 36, on which was a hard or concrete road eighteen feet in width, at a point about four miles northeast of the city of Mendon, in said county, and that plaintiff was driving an automobile in the same direction ahead of and in front of said automobile driven by defendant, and in said automobile, driven by plaintiff, Blanch Hopson Fisher was riding as a passenger. That, while plaintiff and his intestate, Blanch Hopson Fisher, were riding in plaintiff's automobile with due care and caution for the safety of plaintiff's intestate, defendant drove his automobile violently against and collided with the rear of said automobile in which plaintiff and his said intestate were riding, and plaintiff's automobile was thereby upset and turned over and caught fire, and injuries were inflicted upon plaintiff's intestate from which she died on September 1, 1934, within one year from the commencement of this suit.

The negligent acts charged against defendant were:

(a) A charge of general negligence.

(b) That defendant negligently failed to keep or exercise a proper watch or lookout.

(c) That the defendant negligently and carelessly drove his said automobile at a speed greater than was then and there proper, having regard to the traffic and the use of the way, and contrary to the statutes of the state of Illinois.

(d) That the defendant carelessly and negligently drove his said automobile upon said highway at a speed exceeding forty-five miles per hour and at, to wit, sixty miles per hour, and contrary to the statutes of the state of Illinois.

It is further alleged in the complaint: That the said Blanch Hopson Fisher left surviving her the plaintiff, her husband, and no child or children or any descendant or descendants of any deceased child or children. That at all times mentioned plaintiff and plaintiff's intestate were free from any negligence contributing to her injury or death.

The defendant answered denying that the plaintiff exercised due care and caution for the safety of said Blanch Hopson Fisher, and denied that Blanch Hopson Fisher was in the exercise of due care and caution for her own safety, and charged that they were guilty of negligence which was the proximate cause of said accident; that the automobile driven by plaintiff, in which intestate was riding, did not exhibit any lighted lamp so situated as to throw a red light visible in the reverse direction from which said automobile was proceeding; denied that defendant drove his automobile violently against and collided with the rear end of said Fisher automobile; denied each and all the allegations in paragraph 3, subsections “a,” “b,” “c,” and “d,” of the complaint.

The plaintiff replied, denying that Blanch Hopson Fisher and the plaintiff were guilty of negligence which was the proximate cause of the accident, and denied that the automobile, which was driven by plaintiff and in which plaintiff's intestate was riding, did not exhibit any lighted lamp so situate as to throw a red light visible in the reverse direction from which said automobile was proceeding.

At the close of plaintiff's evidence the defendant made a motion in writing, as follows: “The Defendant, Russell Wittler, by Lancaster & Nichols, his attorneys, at the close of the Plaintiff's evidence moves court to instruct the jury to find the issues for the defendant.”

The court, after hearing said motion, ordered that said motion be sustained as to the third and fourth counts, counts “c” and “d” of the complaint, and overruled said motion as to the first and second, counts “a” and “b” of the complaint. The record shows that the hearing on this motion and the ruling thereon by the court was out of the presence of the jury. No instruction was given the jurors at that time, either orally or in writing, informing them that no recovery could be had upon said counts 3 and 4 of the complaint.

At the close of all the evidence, the defendant made the following motion in writing: “The Defendant, Russell Wittler, by Lancaster & Nichols, his attorneys, at the close of all the evidence moves the court to instruct the jury to find the issues for the defendant”--which motion was refused by the court.

Over the specific objection of the plaintiff, the court gave to the jury the following instruction: “The court instructs the jury that there is no legal evidence to support these two charges that the defendant drove his automobile at a greater rate of speed than was allowed by the Statutes of the State of Illinois, and in considering your verdict you will disregard any evidence in regard to those two charges in the declaration”--which was given to the jury with a series of other...