Harned v. Tippett

• Decision Date: 15 December 1939
• Docket Number: Ag. No. 13.
• Parties: HARNED v. TIPPETT.
• Court: United States Appellate Court of Illinois

302 Ill.App. 258

23 N.E.2d 931

HARNED

v.TIPPETT.

Ag. No. 13.

Appellate Court of Illinois, Fourth District.

Nov. 8, 1939.

Rehearing Denied Dec. 15, 1939.

Appeal from City Court of City of East St. Louis; Wm. F. Borders and Ralph Cook, Judges.

Action by Margaret Harned against William Tippett for injuries sustained in an automobile collision. From an adverse judgment, the defendant appeals. Pending appeal a petition was presented to a judge in vacation suggesting that plaintiff had died and asking that Max Harned, her administrator, be substituted as appellee. The motion was allowed and the substitution was made.

Judgment affirmed. Pope & Driemeyer, of East St. Louis, for appellant.

Harold J. Bandy and John M. Karns, both of East St. Louis, for appellee.

STONE, Presiding Justice.

Margaret Harned, plaintiff-appellee, brought suit in the City Court of East St. Louis against William Tippett, defendant-appellant, charging in two counts that while she was riding as a guest in the said appellant's automobile he was guilty of wanton and wilful misconduct which resulted in serious bodily injury to her. The complaint charges among other things that the appellant deliberately, wilfully and wantonly drove his automobile at a high rate of speed, to wit, the speed of 60 miles an hour, without exercising any regard for plaintiff's safety and without keeping the automobile under such reasonable control that he could stop or turn the same to avoid colliding with other vehicles, and that the injury by which appellee was damaged was the result of the defendant's wilful and wanton conduct in so driving and in refusing to listen to her protestations and in refusing to give due regard for the traffic and the right of the way at the time and place of the collision. The allegations of the petition were denied by the appellant. A trial was had by a jury which resulted in a verdict and judgment in favor of plaintiff in the sum of $4,850. Motion for new trial and for judgment notwithstanding the verdict were denied by the trial court and appellant has appealed here, and he assigns as errors that the court refused to give judgment notwithstanding the verdict, that the verdict and judgment are contrary to the law and the evidence, the court erred in overruling defendant's motion for a new trial and in giving certain instructions; also it is claimed that the court erred in admitting improper testimony as to damages, but that assignment not having been argued, it is held to be waived.

While this appeal was pending a petition was presented to one of the judges in vacation, suggesting that Margaret Harned, plaintiff-appellee, had died, and asking that Max Harned, her Administrator, be substituted as plaintiff-appellee in her stead. This motion was allowed and the substitution was made.

As we view this record the matter presented was a pure question of fact for the jury, whether defendant-appellant's conduct was such as to amount to wanton and wilful conduct within the meaning of the law. A jury found that it was. It is very earnestly argued that such finding was wrong, that it was against the manifest weight of the evidence, and that the court should have held as a matter of law that defendant-appellant was not guilty of wilful and wanton conduct.

The jury had evidence submitted to it that the car in which both parties were riding approached a paved overhead viaduct, that on either side of said viaduct was a factory; that a large number of cars were parked...