Fitzpatrick v. California & Hawaiian Sugar Ref. Corp.
| Decision Date | 01 March 1941 |
| Docket Number | Ag. No. 13. |
| Citation | 309 Ill.App. 215,32 N.E.2d 990 |
| Court | United States Appellate Court of Illinois |
| Parties | FITZPATRICK v. CALIFORNIA & HAWAIIAN SUGAR REFINING CORPORATION, LIMITED, ET AL. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Madison County; Maurice V. Joyce, Judge.
Action by Lena Fitzpatrick against the California & Hawaiian Sugar Refining Corporation, Limited, and Edward C. Gaskill, to recover for injuries sustained by the plaintiff in an automobile collision. From a judgment in favor of the plaintiff, the defendants appeal.
Judgment affirmed. Leahy, Walther & Hecker, of St. Louis, Mo., and Warnock, Williamson & Burroughs, of Edwardsville, for appellants.
Frank E. Doyle, of St. Louis, Mo., and Ben M. Creamer, of East St. Louis, for appellee.
Plaintiff, who is the appellee, obtained a verdict of a jury in the sum of $7,500, afterwards reduced by remittitur to $5,000, against defendants who are the appellants, in the Circuit Court of Madison County in an action brought to recover for personal injuries suffered when the automobile in which plaintiff was riding collided with the rear end of the automobile of defendants on Highway 66, about two miles north of Edwardsville, Illinois.
The defendant, Edward Gaskill, at the time of the collision, was employed by the defendant, California and Hawaiian Sugar Refining Corporation, Ltd. It is admitted that at the time of the accident, the defendant Gaskill was employed by the defendant corporation, and was acting within the scope of his employment. Plaintiff's husband, James L. Fitzpatrick was employed by Seavey and Flarsheim Brokerage Company, brokers for the aforesaid sugar refining company.
On April 15, 1939, Fitzpatrick and his wife, the plaintiff, drove from their home in St. Louis, to Witt, Illinois, where Gaskill and Fitzpatrick showed a motion picture, concerning the manufacture of sugar. After the show, Mr. and Mrs. Fitzpatrick and Gaskill, started home in their respective cars, stopping at Litchfield, on the way. Leaving Litchfield, they drove south on Highway 66, Gaskill's car leading. It was raining and the pavement was wet. At one o'clock in the morning, the two automobiles reached a point about two miles north of Edwardsville, where the pavement runs north and south. Both plaintiff and her husband testify that Fitzpatrick was here driving about forty-five miles an hour, and defendant Gaskill testified that he was driving about forty. Here Gaskill's car was about a hundred feet ahead of the car in which plaintiff was riding.
About two miles north of Edwardsville, a county road intersects Highway 66 from the west at a right angle. As defendant Gaskill's car approached this intersection his attention was attracted to a car turned upside down in a ditch on the west side of the paved highway, about ten feet south of the county road. Gaskill slowed his car down, eventually applying his brakes, and stopped on the pavement. The Fitzpatrick car collided with the back of the defendant's car, in spite of the application of brakes and an attempt to turn to the left on the part of plaintiff's husband. The plaintiff was thrown to the floor of the car and sustained injuries.
It is maintained by defendants that they are not guilty of the negligence charged against them, in that they did not make a stop upon the paved part of the highway, as is within the meaning of or is prohibited by the Statute.
Chapter 95 1/2, Sec. 185, Ill.Rev.Stats.1939 (Jones Ill.Stats.Ann. 85.217), provides: Defendants contend that this statute has no application where an emergency or the exigencies of a situation compel a car to stop on the pavement, and cite cases from courts of other states in support of their contention. In all of these cases there existed some emergency, some exigency, beyond the control of the driver. In all of those states, the prohibition was against the “parking or leaving” of the car on the highway, and not the stopping. In the instant case there was no emergency, beyond the control of the driver of the car which stopped on the paved highway. Defendant Gaskill testified that his purpose in making this stop was to see if he could give some assistance to anybody that might have been hurt in the previous accident. It is argued on his behalf that it was not practical to drive off of the paved highway onto the shoulder, but there is no evidence in support of that, Gaskill's testimony in that regard being to the effect that there was enough space between the ditch and the paved portion of the highway for him to pull out there on the dirt. However, the question as to whether it was practical for him to have done so is more or less academic, in the light of his reason for stopping. If the humanitarian urge to aid some one in apparent distress was strong enough in the defendant, he could have taken the chance of injury to himself, or damage to his car, and have driven off on the shoulder regardless of its condition. He chose rather to stop suddenly, when it was dark and raining, without indicating by hand signal or otherwise, his intention so to stop, and by so doing take the chance of injuring anyone driving behind him. This was not the case of it being anyone in general, who might be properly upon that road, for the two cars left Litchfield together and Gaskill knew that the other car was close behind him.
There was no evidence that there was anything mechanically wrong with his car, or that there was any obstruction on the highway. Our courts have held that the only excuse for stopping on the pavement is an emergency or exigency which leaves no other choice. Hand v. Greathouse, 294 Ill.App. 383, 13 N.E.2d 1010;Frochter v. Arenholz, 242 Ill.App. 93;Sugru v. Highland Park Yellow Cab Co., 251 Ill.App. 99; Crawford v. Cahalan, 259 Ill.App. 14;McLaren v. F. Byrd, Inc., 296 Ill.App. 345, 15 N.E.2d 993;Mayhak v. Edward J. Meyers Co., 306 Ill.App. 284, 28 N.E.2d 343.
In the case of Crawford v. Cahalan, supra, the driver of an automobile stopped on the paved portion of the highway, near a car which had skidded into the ditch, and there the court said: ...
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