Hann v. Brooks

• Decision Date: 23 June 1947
• Docket Number: Gen. No. 10106.
• Citation: 331 Ill.App. 535,73 N.E.2d 624
• Parties: HANN v. BROOKS et al.
• Court: United States Appellate Court of Illinois

331 Ill.App. 535

73 N.E.2d 624

HANN

v.BROOKS et al.

Gen. No. 10106.

Appellate Court of Illinois, Second District.

May 26, 1947.

Rehearing Denied June 23, 1947.

Appeal from Circuit Court, La Salle County; Louis A. Zearing, Judge.

Wrongful death action by Willie Bee Hann, administratrix of the estate of Melvin Hann, deceased, against Raymond Brooks and Ramsford Huston. From a judgment for the plaintiff, the defendants appeal.

Affirmed.

Hollerich & Hurley, of La Salle, for appellants.

Sidney S. Deutsch and Stewart R. Winstein, both of Rock Island, for appellee.

BRISTOW, Justice.

The plaintiff, Willie Bee Hann, administratrix of the estate of Melvin Hann, deceased, filed this suit in the Circuit Court of La Salle County, Illinois, under the Injuries Act against the defendants, Raymond Brooks and Ramsford Huston.

The jury returned a verdict in favor of the plaintiff and against both defendants for $10,000, and defendants' motion for judgment notwithstanding the verdict and motion for a new trial were overruled and judgment entered on the verdict. Both defendants have appealed from the judgment.

Plaintiff's complaint alleged that the defendant Raymond Brooks was driving an automobile as the agent and servant of the defendant Ramsford Huston, and the negligence charged was the operation of this automobile on the left half of the roadway contrary to Section 54, and at an excessive rate of speed contrary to Section 49 of the Uniform Act Regulating Traffic on Highways. Ill.Rev.Stat.1945, c. 95 1/2, §§ 146, 151.

The deceased was 29 years of age and was employed by Engler & Ferris of Maysville, Iowa, as a truck driver. On August 12, 1943, he was driving a tractor-trailer truck for his employer en route to Chicago, the trailer of the truck then being loaded with hogs. About 10 P.M. on that date while driving this truck in an easterly direction on U. S. Route No. 34 in La Salle County, about 1 1/2 miles west of Mendota, Illinois, the truck collided with an automobile then being driven by the defendant Raymond Brooks and owned by defendant Ramsford Huston. The truck overturned and caught fire. The deceased, Melvin Hann, was injured and seriously burned. It was stipulated that the injuries he sustained caused his death the next morning. The highway runs due east and west and is level for a great distance each way from the scene of the accident.

Plaintiff's evidence consisted of exhibits, the testimony of the fire chief of Mendota, two highway maintenance men, two men having knowledge of deceased's driving habits, the widow and defendant Raymond Brooks, who was called by the plaintiff as an adverse witness under Section 60 of the Practice Act, Ill.Rev.Stat.1945, c. 110, § 184.

Alvin C. Kuhrt testified that he was a building contractor and chief of the volunteer fire department of the City of Mendota, and that he arrived on the scene shortly after the accident. He found the defendants' automobile just off the north edge of the pavement 300 feet west of the point of impact which was indicated by ‘marks on the pavement’ and was permitted to testify without objection ‘I knew where the impact took place by the marks on the pavement.’ The trailer and tractor were also north of the pavement. The pavement was not very wet although there was a light drizzle when he was there.

John Humphrey and R. M. Hunton, two state highway maintenance men, went to the scene of the accident about 7:30 A.M. the following morning to clear the highway. The testimony of these men was substantially the same. They testified they found a skid mark on the pavement that started at the black line and went diagonally for a short distance to the south of the black line and then parallel with the black line for approximately 100 feet on the south side of this line where they found glass and gasoline in the center of the pavement. From that point on there was a mark apparently made by a wheel rim of the defendants' automobile which ran for another 100 feet diagnonally to the shoulder on the north side of the pavement. They both testified without objection that these skid marks were made by the automobile.

The plaintiff called two witnesses (Bedford Smith and Thomas W. Bedwell) who were personally acquainted with the deceased, and who were also truck drivers. They testified at length that they had ridden with the deceased while he was operating a truck; that they had often seen deceased operating the truck in question over this route; and that deceased was a sober, strong and healthy man, and a careful and safe driver, and at all times observed the rules of the road and drove at a safe rate of speed. No objection was made to the competency of their testimony when they testified as to the habits and due care on the part of the deceased, nor was there any mention made by the defendants that there was an eye-witness to this occurrence competent to testify.

The plaintiff, Willie Bee Hann, testified in her own behalf that she was married to the deceased in March, 1940; that they were residing together as husband and wife; and that he was 29 years old at the time of his death. By her testimony it was established that the deceased was survived by his widow and three children of the ages of four, three and two years, the last child being born after the death of plaintiff's intestate. She further testified, without objection, that the deceased was six feet tall, weighed about 170 pounds, was muscular, was not sick at any time after they were married, worked steadily, had a public school education, didn't gamble or get drunk, and that he was a thrifty, industrious man; that deceased had worked as a truck driver for Engler & Ferris for about a year and a half; that his earnings were $45 per week and expenses; that prior to his employment by Engler & Ferris he drove a tractor-trailer for Pioneer Motor Service from Rock Island to Chicago; and that prior to that time he was employed as a mechanic in Davenport, Iowa. She further testified that at the time of the accident he was driving a GMC Conventional truck. No objections were made at the trial to the testimony of Mrs. Hann, and its competency has not been questioned in this court.

The plaintiff also offered three photographs of the wrecked tractor-trailer made the day following the accident and the American Table of Mortality taken from a manual of the Guardian Life Insurance Company. This last exhibit was admitted over the objection of the defendants on the ground it was not a recognized table of mortality.

The plaintiff called the defendant Raymond Brooks as an adverse witness under Section 60 of the Practice Act, who was cross examined as follows:

‘Q. Your name is Raymond Brooks? A. Yes.

‘Q. Mr. Brooks, were you, on or about the evening of August 12th, 1943 driving a 1941 Pontiac automobile that belonged to the defendant, Ramsford Huston? A. Yes.

‘Q. And you were driving that car with his permission? A. Yes.

‘Q. And you were driving that car in the direction of the home of Ramsford Huston? A. That is correct.

‘Q. Were you driving this 1941 Pontiac automobile westerly on U. S. Route Number 34 at or about ten o'clock P.M. on the evening of August 12 at a point about one mile west of Mendota, Illinois? A. Between nine-thirty and ten o'clock, that's right.’

Whereupon the Presiding Judge said to plaintiff's counsel: ‘You have gone too far. We had a discussion about this matter and agreed what question you could ask and have answered. You've gone beyond that; you didn't keep your agreement with the court.’

Previous to the calling of the defendant Brooks as an adverse witness the plaintiff had called the defendant Huston as an adverse witness under the Section 60, whereupon it was stipulated that Huston was the owner of the automobile involved in this suit and the defendant Huston was withdrawn and the defendant Brooks then called under Section 40.

Since the defendants urge that there is no evidence to prove due care on the part of the plaintiff's intestate, and no credible evidence which proves or tends to prove negligence on the part of the defendants; and that this judgment be reversed without remanding or reversed with instructions to enter judgment in favor of the defendants notwithstanding the verdict, we have set out plaintiff's evidence at some length.

The defendants having assigned no error that the verdict is contrary to the manifest weight of the evidence, we deem it unnecessary to set out defendants' evidence except insofar as its competency or incompetency is questioned. Suffice to say that the defendant Raymond Brooks was called to testify on behalf of the defendants and plaintiff's objection to his competency under Section 2 of the Evidence Act, Ill.Rev.Stat.1945, c. 51, § 2, was sustained, whereupon defendants made their offer of proof by this witness, contending he was competent by reason of the testimony given by him when called as an adverse witness under Section 60, to which offer, plaintiff's objections were likewise sustained.

The defendants offered in evidence photographs showing the highway at the scene of the wreck and the defendant Huston's automobile the day following the accident. The photograph of the automobile shows no damage to the front bumper, grill or hood but the left front headlight broken, the left front fender and left doors and running board and the left rear fender extensively damaged, the left front tire entirely deflated with visible rim cuts, and an entire absence of any tire on the left rear wheel and the rims of this wheel bent and distorted.

The defendants called the wife of the defendant Huston as an occurrence witness, and the plaintiff's objection to her competency by reason of Section 2 of the Evidence Act was sustained. The defendants then called, as an occurrence witness, Louise Sunkin, who at the time of the accident was the wife of defendant Raymond Brooks, but who had, subsequent to the accident but before the trial of this cause, obtained a divorce...