Hawbaker v. Danner

• Decision Date: 03 November 1955
• Docket Number: No. 11326.,11326.
• Citation: 226 F.2d 843
• Parties: Rex HAWBAKER, as Administrator with the Will Annexed of the Estate of Stanley Edward Finnegan, deceased, et al., Plaintiff-Appellee, v. Linda DANNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

226 F.2d 843 (1955)

Rex HAWBAKER, as Administrator with the Will Annexed of the Estate of Stanley Edward Finnegan, deceased, et al., Plaintiff-Appellee, v. Linda DANNER, Defendant-Appellant.

No. 11326.

United States Court of Appeals Seventh Circuit.

November 3, 1955.

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Frederick H. Stone, Louis F. Gillespie, George B. Gillespie, Springfield, Ill., for defendant-appellant, Linda Danner (Gillespie, Burke & Gillespie, Springfield, Ill., of counsel).

Henry R. Barber, Alton G. Hall, Roger H. Little, Springfield, Ill., for plaintiff-appellee.

Before MAJOR and FINNEGAN, Circuit Judges, and PLATT, District Judge.

PLATT, District Judge.

Plaintiff, Rex Hawbaker as Administrator of the Estate of Stanley Edward Finnegan, Patricia Givens Finnegan and Marion Patricia Finnegan, and as next friend of Stanley Garrett Finnegan, brought this action to recover for wrongful death,¹ and for personal injuries sustained by Stanley Garrett Finnegan against Linda Danner, James Brock, and Valley Distributing Company, an Illinois Corporation. The district court directed a verdict in favor of James Brock, and the jury returned a verdict against Linda Danner only, awarding $15,000.00 damages in the estate of Stanley Edward Finnegan and $10,000.00 in the estate of Patricia Givens Finnegan. The defendant, Linda Danner, filed a motion for new trial and for judgment notwithstanding the verdict. The motion was denied. She appeals only to obtain a new trial.

Linda Danner maintains that the district court erred in denying her motion for new trial for the following reasons:

1. The court improperly allowed testimony relating to the habits and due care of Stanley Edward Finnegan and Patricia Givens Finnegan.

2. The court erred in admitting in evidence the social security records stating the yearly earnings of Stanley Edward Finnegan and Patricia Givens Finnegan.

3. The court refused to give the following suggested instructions:

"You are charged that if you believe that the deaths and injuries complained of, if any, were the result of causes or circumstances over which the defendant, Linda Danner, had no control and could not prevent, then you should find her not guilty.

"You are charged that it is not every accident which makes an operator of an automobile liable for damages for an injury. If the accident is unavoidable so far as the operator of an automobile is concerned, then no liability is incurred by him, whether as a result of it a person is lightly or seriously injured, or killed, and if in this case you believe from all of the evidence and under the instructions of this court that so far as the defendant, Linda Danner, is concerned the injuries and deaths complained of were unavoidable, then you should find her not guilty."

The facts in this case disclose that a motor vehicle collision occurred about 3:45 p. m., March 7, 1953, on U. S. Route 66, on Lake Springfield Bridge, south of Springfield, Illinois. This bridge was paved, 1800 feet in length, with two lanes for north bound traffic and two lanes for south bound traffic. The visibility was good but the surface of the bridge was covered with snow, ice, slush, water, and as a result was slippery. The defendant, Linda Danner, was driving her Ford automobile in a southerly direction, and with her were three other young ladies. As the Danner automobile approached the bridge it was followed by an automobile driven by Robert L. Allen, and riding with him was his wife Billie. Just before the defendant drove upon the bridge the Allen automobile was passed by the Valley Distributing Company's truck, which was being driven by George Friar, and riding with him was Ben Joslow. Linda Danner drove in the outer or westerly lane until she reached a point 100 to 200 feet onto the bridge, when she turned her car into the inner south bound lane. In doing so she encountered slush, her car skidded, and she lost control. Her car crossed into the north bound lanes and collided with a Pontiac automobile driven by James Brock. Her automobile continued skidding until it came to a halt against the east sidewalk of the bridge. Immediately following this collision, a Nash Station Wagon headed north and driven by Stanley Edward Finnegan, in which his wife Patricia, daughter Marion, and son Garrett were riding, crossed into the east south bound lane and collided with the Valley Distributing Company's truck. All of the occupants of the Finnegan vehicle except Garrett died as a result of injuries received in the collision. Patricia Finnegan died immediately but Stanley was taken to the hospital and lived two days. Billie Allen, a witness for the plaintiff, testified that just about the same instant that the Danner automobile hit the bridge rail she looked in front of her and saw the Nash or Finnegan vehicle collide with the truck. She did not see the Nash prior to the impact, nor did she know the speed of the Nash, or when it came into the south bound lane.

Over the objections of the defendant, the plaintiff was permitted to introduce into evidence the careful driving habits of the deceased Stanley Edward Finnegan, and the careful habits of Patricia Givens Finnegan. The defendant offered George Friar and Ben Joslow as eyewitnesses, but the plaintiff refused to accept them. George Friar testified for the defendant:

"Q. And, did you see a car coming north that was afterwards in collision with your truck?

"A. Well, oh, 35 or 40 feet, I seen one coming north, northwest."

On cross examination this witness admitted testifying before a coroner's inquest on March 12, 1953, that he saw the Nash automobile "a split second" before it struck his truck. Ben Joslow testified:

"Q. Had you seen a station wagon that was afterward in collision with your truck?

"A. Not until it was almost on us."

On cross examination he recalled testifying he saw the Finnegan automobile 10 or 15 feet before the collision; on redirect examination he testified:

"Q. Now, at the time that this Nash automobile shot around and came onto your side of the highway, what was it doing with reference to whether it was skidding, or what?

"A. What I can remember, it just shot out behind a car and came rather fast, that is all I can remember, it hit us."

Rex Hawbaker testified on cross examination that while talking to Stanley Edward Finnegan in St. John's Hospital in Springfield Stanley said:

"Something about an accident being in front of him and he put on the brakes and skidded into the front of the truck."

The defendant emphasizes in brief and argument that the court erred in admitting evidence of the careful habits of Patricia Givens Finnegan, and her husband, Stanley Edward Finnegan.

"The rule is well settled in Illinois that when there is no eyewitness to an accident who is competent to testify to the facts which caused the accident in a wrongful death action, testimony of the habits and due care on the part of deceased is properly admissible in evidence."

Hann v. Brooks, 331 Ill.App. 535, 73 N. E.2d 624. The witnesses tendered by the defendant Danner were competent witnesses, since they were not parties to the suit. Hawthorne v. New York Cent. R. Co., 2 Ill.App.2d 338, 119 N.E.2d 516. In determining whether or not there was an eyewitness, such as to preclude the evidence in question, we should give careful attention to the obvious purpose of this rule of law. In Illinois the burden is upon the administrator to prove that the deceased was in the exercise of ordinary care to avoid the injury. Illinois Central R. Co. v. Nowicki, 148 Ill. 29, 35 N.E. 358. Where there is no direct evidence of due care he must resort to evidence of the deceased's careful habits to prove reasonable care. Morgan v. Rockford, B. & J. R. Co., 251 Ill.App. 127.

The general reputation of habits of due care of Patricia were admissible as tending to show she was in the exercise of due care on the occasion. Illinois Cent. R. Co. v. Prickett, 210 Ill. 140, 71 N.E. 435. While the negligence of Stanley, if any, could not be imputed to Patricia² it was her duty,

"where she has an opportunity to learn of danger and to avoid it, to warn the driver of such vehicle of approaching danger, and she has no right, because someone else is driving, to omit reasonable and prudent efforts on her own part to avoid danger." Dee v. City of Peru, 343 Ill. 36, 42, 174 N.E. 901, 904.

There was no one who did or could testify as to whether Patricia said or did anything as she rode in the automobile. Her careful habits were the only evidence to affirmably prove reasonable care. See Morgan v. Rockford, B. & J. R. Co., supra.

This brings before us the proposition as to whether the careful driving habits of Stanley were admissible to prove that he was in the exercise of reasonable care for his own safety. Reasonble care means:

"`that he was required to exercise that degree of care which an ordinarily prudent person, situated as plaintiff was before and at the time of the accident, would have exercised for his or her own safety.\'" Pierson v. Lyon & Healy, 243 Ill. 370, 90 N.E. 693, 696.

In the instant case the surface of the bridge was in a hazardous condition for driving. Stanley was faced with the collision of the Danner and Brock vehicles, while the Valley Distributing Company's truck and the Allen car were moving toward him in the south bound lanes. Stanley was confronted with an apparent sudden danger. If, without fault on his part, a person is suddenly confronted with what would appear to an ordinarily careful person to be danger, then he is not required to use the same degree of care which is required under ordinary circumstances, but in such a situation it is his duty to use that degree of care which would be used by an ordinarily careful person, taking such danger, if any, into consideration.³ Kavanaugh v. Parret, 379 Ill. 273, 40 N. E.2d 500; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, 74 N.E. 410. There was no witness who testified as to the speed...