Holdoway v. Choisser
| Decision Date | 16 April 1940 |
| Docket Number | Ag. No. 17. |
| Citation | 27 N.E.2d 228,305 Ill.App. 20 |
| Parties | HOLDOWAY v. CHOISSER. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Saline County; D. F. Rumsey, Judge.
Action by Madeline Holdoway against Eugene Choisser to recover for injuries sustained while riding in an automobile as a guest. Judgment for defendant, and plaintiff appeals.
Reversed and cause remanded. A. W. Summers, of Eldorado, and Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellant.
Wheatley & Combe, of Harrisburg, for appellee.
Plaintiff brings this appeal from a judgment for defendant entered in the circuit court of Saline County on a verdict of a jury finding defendant not guilty.
The complaint, in substance, charged that on the date of the accident, October 16, 1937, the defendant Eugene Choisser was the owner of an automobile and plaintiff was riding in said automobile as a guest without pay and with due care; that said automobile was equipped with brakes which were defective and dangerous to the safety of persons riding in said automobile; that said automobile was not equipped with brakes adequate to control the movement of and to stop and hold said automobile; that said brakes were not in good working order and were not so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle, as provided by statute, all of which was known to defendant but unknown to plaintiff; that the defendant wilfully and wantonly caused his agent to operate said vehicle and that the defective brakes caused a collision whereby plaintiff was wilfully and wantonly injured by the wilful and wanton conduct of defendant.
The answer of defendant specifically denied liability.
Plaintiff is a sister of defendant. At the time of the accident an automobile owned by defendant was being driven by Greek Choisser, the wife of defendant, and the only other occupants of the automobile were the plaintiff, her daughter, aged 7, and the mother of plaintiff and defendant.
Plaintiff and Greek Choisser testified for the plaintiff, but the other occupants of the automobile did not testify. All of the parties in question live in Eldorado, Illinois.
Greek Choisser testified that at the time in question she was driving to the town of Sparta to purchase a table with money given her by her husband; he knew she was going to make the trip and that plaintiff and his mother were also going, and made no objection; the day before the accident defendant told her to be careful of the car, and that the brakes were bad; he warned her twice on the morning of the accident and said the car was dangerous and for her to be careful; the weather was clear and the road dry; while driving at about 45 or 50 miles per hour the car started swerving back and forth, “sorta shimmying” across the road; she tried to keep it under control by putting on the brakes and when she put on the foot brake the car went off the pavement and turned over on its side and plaintiff was injured; she noticed no trouble in operating and handling the car at any time before the “upset” and the first difficulty she noticed was when the car began to swerve back and forth; she did not apply the brakes before it began swerving; no one in the car made any complaint about her driving; she had driven the car at other times and until this morning she experienced no difficulty in the operation of the car.
Plaintiff testified that on the morning of the accident Greek Choisser asked plaintiff to go to Sparta, and Greek Choisser picked plaintiff up on the street; she and Greek Choisser rode in the front seat, and the mother and daughter in the rear seat; the traffic was light; the car began swerving and jerking and when Greek Choisser put on the brakes “we went over”; the front wheels quivered and shimmied; the car traveled from one side of the road to the other two or three times and when Greek Choisser slammed on the brakes the car plunged off the pavement and turned over; she paid no fare or fee for the trip; there was nothing to indicate the car was unmanageable before the accident; the car began swerving from one side to the other two or three times and zigzagged about 200 feet and then Greek Choisser applied the brakes; she found no fault with the driving; before the accident nothing unusual happened in the operation of the car and there was nothing to indicate the car was unmanageable, and the first indication she had of the car not operating right was when it began swerving.
Jack Turner, a witness for plaintiff, testified that about October 2nd defendant drove the witness from Norris City to Chicago in the car in question and the witnessnoticed that when defendant applied the brakes the car would swerve, go back and forth across the road, and get out of control to a certain extent; he noticed this three times on the trip of about 615 miles; on such trip the car swerved seven or eight times but was only across the road three times; they drove about 50 miles per hour.
Defendant, called as a witness by plaintiff for adverse examination, testified that on the day in question his wife told him she was going to Sparta to buy a table and he gave her the money to purchase it; the car was a 1937 model which he had owned about five months and had driven quite often; he had some trouble with the car after he bought it; this trouble began two or three weeks after the purchase; when he went to put on the brake it would pull to the right or left; he took it back to the people he bought it from to have it corrected from pulling one way or another, and took it back to them from time to time for work on the brakes; about five or six weeks before the accident they put in new brake linings, which did not make much difference, if any, in the car's actions; if the...
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