Keehn v. Braubach

• Court: Appellate Court of Illinois
• Writing for the Court: JOHN J. SULLIVAN
• Citation: Keehn v. Braubach, 307 Ill.App. 339, 30 N.E.2d 156 (Ill. App. 1940)
• Decision Date: 26 November 1940
• Docket Number: Gen. No. 40674.
• Parties: KEEHN v. BRAUBACH ET AL.

307 Ill.App. 339

30 N.E.2d 156

KEEHN

v.BRAUBACH ET AL.

Gen. No. 40674.

Appellate Court of Illinois, First District, Second Division.

Nov. 26, 1940.

Appeal from Circuit Court, Cook County; Michael Feinberg, Judge.

Action by Roy D. Keehn against George Braubach and another for injuries resulting from an automobile accident. From a judgment on a verdict for plaintiff, defendants appeal.

Reversed and remanded. Wilson & McIlvaine, of Chicago (J. F. Dammann, K. F. Montgomery, and Charles W. Boand, all of Chicago, of counsel), for appellants.

Albert Fink, of Oak Park, and John H. Bishop and W. M. Keeley, both of Chicago, for appellee.

JOHN J. SULLIVAN, Justice.

This is an appeal from a judgment entered upon a jury verdict awarding plaintiff $87,500 damages for injuries resulting from an automobile accident.

The declaration consists of three counts. The first alleges:

“1. That at about one o'clock on the morning of July 13, 1935, at a place about seven miles west of the town of Spearfish in the State of South Dakota, on a public highway which ran in a general easterly and westerly direction and was known as U. S. Number 14, plaintiff was injured through the gross negligence and wilful and wanton misconduct of defendant, George Braubach, while riding in an automobile, which automobile was owned by defendant, Walter H. Annenberg, and which was then being driven by the said George Braubach as the agent and servant of the said Walter H. Annenberg, and plaintiff was then riding in said automobile upon the invitation of said Walter H. Annenberg.

“2. That the aforesaid gross negligence and wilful and wanton misconduct was this, to-wit: The said George Braubach, notwithstanding plaintiff's protests, drove said automobile in a westerly direction at a speed of about sixty miles per hour along the south half of the main traveled portion of said highway, which traveled portion was about twenty-two feet wide and was covered with gravel or crushed stone, and up and over the summit of a hill, and into collision with a motor vehicle then being driven in an easterly direction along the southerly half of the main traveled portion of said highway; and, as a result of said collision, the automobile in which plaintiff was then riding was overturned, and plaintiff was injured and damaged as hereinafter alleged.

“3. That the Statutes of the State of South Dakota, theretofore duly adopted by the Legislature of the State of South Dakota, included provisions regarding the operation of automobiles upon the public highways of said State as follows:

“ ‘Section 3. Reckless Driving. Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving and upon conviction shall be punished as provided in Section 64 of this act.

“ ‘Section 4. Restrictions as to Speed. (a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.

“ ‘(b) Subject to the provisions of subdivision (a) of this section and except in those instances where a lower speed is specified in this act, it shall be prima facie lawful for the driver of a vehicle to drive the same at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful. * * *

“ ‘4. Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver's view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding; * * *

“ ‘8. Forty miles an hour under all other conditions.

“ ‘It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations, except as provided in subdivision (c) of this section.’ (Subdivision C does not apply to the facts herein alleged.)

“ ‘Section 12. Meeting of Vehicles. Driver of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible.’

“4. That the said driving of said automobile by said George Braubach at said time and place was by him consciously done with knowledge by him then held of the said surrounding circumstances and conditions, and plaintiff charges that same was a breach and violation of defendant's duty then existing under said circumstances to care for the safety of the person of plaintiff, and constituted an absence of such care, and constituted a conscious indifference to the consequences probably to result from his said driving of said car.

“5. That plaintiff was then and there and at all times material thereto in the exercise of due care, and did no act or thing in any way contributing to the said collision or to his injuries or damages herein alleged.

“6. That as a proximate result and direct consequence of the aforesaid collision, and of the driving of said automobile in which plaintiff was riding, as herein alleged, plaintiff sustained a compound fracture of his right forearm, which rendered amputation necessary; divers bones of his body were dislocated and broken, divers muscles, * * * bruised and injured; * * * his brain and nervous system were greatly shocked and injured and their functions impaired, by reason whereof he became sick, sore, lame and disordered, and so remained for a long time, to-wit: from thence hitherto; and has been and will for the balance of his life be sick and disabled, and he has suffered and will in the future continue to suffer great pain and anguish by reason of said injuries, and he has by reason of said injuries expended large sums and amounts of money, and has necessarily incurred and will hereafter incur great liability and indebtedness in his efforts and endeavors to be cured of his said injuries; that he has been unable by reason of said injuries to pursue his usual business, employment and occupation, or manage his affairs, and by reason thereof has lost divers great gains and profits, which he would otherwise have earned, to the damage to the plaintiff in the sum of $250,000.

“Wherefore, plaintiff asks judgment against the defendant, George Braubach, in the sum of $250,000.”

The second count alleges that “plaintiff was injured by reason of the gross negligence and wilful and wanton misconduct of defendant, George Braubach, while riding in a certain automobile which was owned by the defendant, Walter H. Annenberg, and which automobile said defendant, Walter H. Annenberg, was then and there driving and operating by his agent and servant, George Braubach, and plaintiff was then riding in said automobile upon the invitation of said Walter H. Annenberg.

“12. Plaintiff here recites and realleges as part of this Second Count of this Complaint the statements and allegations contained and made in paragraphs numbers 2, 3, 4, 5, and 6 of First Count of this complaint as fully and completely as though written at length in this Second Count of this complaint.”

The third count alleges that “plaintiff was injured by reason of the gross negligence and wilful and wanton misconduct of defendants, George Braubach and Walter H. Annenberg, while riding in a certain automobile which was owned by said Walter H. Annenberg, and which automobile was then and there being operated and driven by defendant, George Braubach, and which automobile was then and there being operated and driven by defendant, Walter H. Annenberg, by his agent and servant, George Braubach, and plaintiff was then riding in said automobile upon the invitation of said Walter H. Annenberg.

“14. Plaintiff here recites and realleges as part of this Third Count of this complaint the statements and allegations contained and made in paragraphs numbers 2, 3, 4, 5 and 6 of First Count of this complaint as fully and completely as though written at length in this Third Count of this complaint.

“Wherefore, plaintiff asks judgment against the defendants, George Braubach and Walter H. Annenberg, in the sum of $250,000.”

On December 6, 1937, each defendant filed an answer to the complaint in which he denies gross negligence and wilful and wanton misconduct, admits that plaintiff was a guest without payment for transportation, and alleges that there was a statute of the State of South Dakota which provided as follows: “ ‘Everyone is responsible, not only for the result of his wilful acts, but also for an injury to another by his want and [of] ordinary care or skill in the management of his property or person, except, so far as the latter has, wilfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the chapter on compensatory relief. Provided that no person transferred [transported] by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.’ (Section 801 of the Revised Code of South Dakota of the year 1919, as amended.)”

On December 10, 1937, plaintiff filed replies to the answers in which he admits the allegations in reference to the guest statute of the State of South Dakota and denies every allegation in the answers that is...