Gardner v. Kelly

• Decision Date: 06 February 1941
• Docket Number: Gen. No. 9578.
• Citation: 31 N.E.2d 278,308 Ill.App. 6
• Parties: GARDNER ET AL. v. KELLY.
• Court: United States Appellate Court of Illinois

308 Ill.App. 6

31 N.E.2d 278

GARDNER ET AL.

v.KELLY.

Gen. No. 9578.

Appellate Court of Illinois, Second District.

Dec. 19, 1940.

Rehearing Denied Feb. 4, 1941.

As Modified on Second Denial of Rehearing Feb. 6, 1941.

Appeal from Circuit Court, Lee County; Harry E. Wheat, Judge.

Action by Margaret Gardner and Frank Gardner, her husband, against Hazel Kelly for personal injuries and damages. The count of the complaint wherein Frank Gardner sought damages was dismissed at the instance of plaintiffs, and from a judgment for Margaret Gardner, defendant appeals.

Reversed.

Warner & Warner, of Dixon, for appellant.

Dixon, Devine, Bracken & Dixon and Gerald Jones, all of Dixon, for appellees.

HUFFMAN, Justice.

This was an action by appellee to recover damages for personal injuries sustained while riding as a guest in the automobile of appellant, at a time when the same was being operated by appellant. The count of the complaint wherein appellee's husband sought damages, was dismissed at the instance of the plaintiffs below. Trial resulted in verdict for appellee in the sum of $10,000, and it is from a judgment on this verdict that appellant brings this appeal.

On November 9, 1938, appellant accompanied by four other ladies, drove from their home at Dixon, Illinois, to the city of Rockport, Illinois, where they spent the day visiting a friend. At about five that afternoon they started to return home to Dixon, travelling a state highway. While on the road home and at a place along the highway where the pavement was constructed upon an embankment about six feet high, appellee and the two ladies riding in the back seat with her, stated that they heard a funny noise. Shortly thereafter, the car swerved, left the road, and rolled down the embankment. Appellee sustained a fractured spine, which has terminated in most unfortunate results. She has suffered a paralysis of the lower extremities and a loss of control of the normal bodily functions. The accident happened at about dusk, and in the open country. The lights of appellant's car were then on.

The evidence on behalf of appellee discloses that the car was being driven at about the speed of thirty-five miles per hour. Two of appellee's witnesses, Mr. Lutin and Mr. Lye were riding in a car about one hundred fifty feet back of appellant's car. They had been in this position for about a mile, when they noticed appellant's car swerve across the road and turn over the embankment. They were the first to reach the car and to assist the occupants. They state that the car had been travelling about thirty or thirty-five miles per hour. The evidence of the mechanic who brought the car in from the scene of the accident, is to the effect that it was a sedan, that one of the rear tires “was flat,” that he took off that wheel and placed it in the back of the car, put on the extra wheel and tire, and took the car to Aurora. The evidence of appellee's witness Lee, a service station man, is to the effect that the tire had received a puncture by a nail, which caused it to become deflated. He further states that he had put a new fuel pump on the car shortly before the accident and had tested the car on the road and found it to be in good condition; and that the tires appeared to have been driven about two thousand miles.

Two witnesses testified on behalf of appellant, her husband and herself. Mr. Kelly stated that he went to the scene of the accident as soon as he heard about it; that he examined the tire on the rear wheel and found that it was punctured by a nail; that it was a Goodyear tire and had been driven about forty-five hundred miles. Appellant testifies that the trip was arranged the day previous; that she was driving upon the pavement when the accident occurred; that she had driven automobiles about fifteen or sixteen years; that in her opinion she was going about thirty-five miles per hour; that immediately before the accident, she...