Jacklich v. Starks

• Decision Date: 05 October 1949
• Docket Number: Gen. No. 10359.
• Citation: 87 N.E.2d 802,338 Ill.App. 433
• Parties: JACKLICH v. STARKS et al.
• Court: United States Appellate Court of Illinois

338 Ill.App. 433

87 N.E.2d 802

JACKLICH

v.STARKS et al.

Gen. No. 10359.

Appellate Court of Illinois, Second District.

Aug. 10, 1949.

Rehearing Denied Oct. 5, 1949.

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

Action by John Jacklich, Sr., as administrator of the estate of William T. Jacklich, deceased, against Thomas O. Starks, and Frank J. Barr, copartners, doing business under the firm name of Starks and Barr, and others, for the wrongful death of decedent. Judgment for plaintiff, and named defendants and defendant Charles Richard Starks appeal.

Affirmed in part, and reversed in part.

Dunn & Hayes, Morris, for appellants.

John J. Black, August B. Black, Morris, for appellee.

WOLFE, Presiding Justice.

On September 20, 1947, the defendant, Charles Richard Starks was operating an International truck and trailer that belonged to the defendants, Thomas O. Starks and Frank J. Barr, copartners doing business as Starks and Barr. At said time, the truck was being used to haul gravel to resurface a public highway running easterly and westerly in the Village of Carbon Hill in Grundy County, Illinois, At that time and place, the said Charles Richard Starks was in the employ of Thomas O. Starks and Frank J. Barr. On September 20, as aforesaid, the defendant, Charles Richard Starks was in the course of his employment on said road, and dumping a load of gravel into a leveller on said roadway, and causing said gravel to be spread upon the same. During the course of the unloading of the gravel, William T. Jacklich, a child of about five years of age, was upon said highway, watching and observing the work being performed by the said defendant, Charles Richard Starks. After the gravel had been unloaded, Charles Richard Starks stopped his truck, and went to the rear of the same and unfastened the leveller from the truck, and started his truck forward and in some manner ran over and killed the said child, William T. Jacklich.

John Jacklich, Sr., was appointed Administrator of the Estate of William T. Jacklich, deceased, and started a suit in the Circuit Court of Grundy County, against Thomas O. Starks and Frank J. Barr, copartners doing business under the firm name of Starks and Barr and Charles Richard Starks and Thomas O. Starks, individually. It is alleged in the complaint that the defendant, Charles Richard Starks, the driver of the truck in question, had allowed the decedent, William T. Jacklich and other boys of tender years to ride on the running board of the truck during the operation of unloading and spreading the gravel, and that it was through his negligence in the operation of the truck, that he ran over and killed the child, William T. Jacklich; that he knew, or by the exercise of ordinary care, should have known that the children including William T. Jacklich, were playing in and around the truck. It is also alleged that the plaintiff was in the exercise of ordinary care for the safety of the said child, William T. Jacklich.

After a motion to strike the complaint had been overruled by the Court, the defendants filed their answer, in which they denied all acts of negligence on their part, and alleged that the plaintiff was not in the exercise of ordinary care and caution for the safety of the child, William T. Jacklich.

The case was submitted to a jury who found the issues in favor of the plaintiff and assessed the damages at $7,500.00. In addition to the regular instructions given by the Court, two special interrogatories were tendered to the jury for answer, which are as follows: First, ‘do you find from the evidence that just prior to being run over by the truck of the defendant, the decedent was riding upon or attempting to catch a ride upon the truck of the defendant without an invitation from the driver?‘ The jury answered this interrogatory ‘yes.’ No. 2 is as follows: ‘Do you find from the evidence that just prior to being run over by the truck of the defendant, the decedent was riding upon or attempting to catch a ride upon said truck?’ The jury answered this interrogatory ‘yes.’ The defendant filed a motion for a new trial, also a motion for judgment notwithstanding the verdict. These motions were denied, and the Court then entered judgment on the general verdict, and the defendants have brought the case to this Court for review.

It is insisted that the plaintiff's intestate was a trespasser in riding upon, or attempting to ride upon the truck without the knowledge, or consent of the driver, also that the mother of the decedent was guilty of contributory negligence, which would bar all the next of kin from recovering in this suit. The evidence clearly shows in this case that the driver of the truck, Charles Richard Starks, had knowledge that the children had been upon the truck while it was being unloaded, and that they were still around the truck when he proceeded to drive away after unloading the gravel. Whether his acts in doing so were negligent and his negligence was the proximate cause of the injury, and whether the acts of the mother were such that the jury should say that she was guilty of contributory negligence that proximately tended to cause the child's injury and death, were questions of fact that were properly submitted to the jury. If the jury were properly instructed in regard to these matters, then this Court would...