Leahy v. Morris

• Decision Date: 04 March 1937
• Docket Number: Gen. No. 10.
• Parties: LEAHY ET AL. v. MORRIS.
• Court: United States Appellate Court of Illinois

289 Ill.App. 99

6 N.E.2d 914

LEAHY ET AL.

v.MORRIS.

Gen. No. 10.

Appellate Court of Illinois, Fourth District.

March 4, 1937.

Appeal from Circuit Court, St. Clair County; Dick Mudge, Judge.

Action by Gertrude Leahy, executrix of the last will and testament of Jeremiah J. Leahy, deceased, Gertrude Leahy, individually, and Helen Scarritt, respectively, against Daniel W. Morris. From an order granting defendant a new trial after verdicts for plaintiffs, plaintiffs appeal.

Reversed and remanded, with directions. Ely & Derrick, of St. Louis, Mo., and J. D. Wilson, of Nokomis, for appellants.

Farmer, Klingel & Baltz, of Belleville, for appellee.

STONE, Presiding Justice.

A short distance south of the government's army field known as Scott Field in St. Clair county, route No. 161, of the state system of durable hard-surfaced roads, an east and west highway, intersects with another road of said system running north and south at that point. Owing to its proximity to Scott Field, this route is known as the Scott Field road. As route No. 161 approaches the Scott Field road at the point in question there is a “Y” formed, one branch going to the right, or northwest; the other branch going to the left, or southwest--both running into the Scott Field road.

About 4:30 o'clock in the afternoon of November 13, 1934, plaintiff Gertrude Leahy's testate, Jeremiah J. Leahy, Gertrude Leahy, his wife, and Helen Scarritt, were driving from the east on route 161 in an automobile driven by the said Jeremiah J. Leahy and owned by Helen Scarritt. These are the three plaintiffs. As they approached the Scott Field road and turned on the left wing of the “Y” to enter said road, Daniel W. Morris, defendant-appellee, was traveling on the Scott Field road in a northerly direction, coming from the south of where the Scarritt car was to enter the Scott Field road. With Morris were his wife, his eight year old son, and Leo Seyd, his wife's brother.

Right of way has been given to the Scott Field road over the south arm of route No. 161, and the state, to give this notice, has placed the usual stop sign on the west side of this arm about 30 or 60 feet back or north from the point where it runs into Scott Field road. The state has also placed another sign on the north side of route No. 161, about 400 feet east of Scott Field road, which sign reads, “Stop Sign Ahead.”

Both of these roads at this point are level, as is also the country around for more than a mile, and there is nothing to obstruct the view of a person traveling on either of these roads in any direction.

As the car driven by Jeremiah J. Leahy entered from the south wing of the “Y” in question, there was a collision between the car he was driving and the car driven by the defendant Morris. Jeremiah J. Leahy was killed, Gertrude Leahy was injured, and Helen Scarritt's car was damaged. Suits were brought for damages to the three plaintiffs growing out of this collision. The jury awarded damages as follows: $5,500 to Gertrude Leahy, executrix of the last will and testament of Jeremiah J. Leahy, deceased; $1,000 for plaintiff Gertrude Leahy; and $300 for plaintiff Helen Scarritt.

At the close of plaintiffs' evidence, a motion was made by defendant to have the court direct a verdict in his favor. This motion was overruled. At the close of all the evidence, a similar motion was made and overruled. After verdicts, a motion was made for judgment non obstante veredicto and this was overruled by the court. Defendant filed a motion for new trial, and, while other reasons were assigned, the one relied upon by the defendant was that the verdicts were each against the manifest weight of the evidence. The trial court allowed these motions and set aside and vacated the above verdict.

Appellants filed in this court their petition for leave to appeal from the order of the court granting a new trial in the cause under section 77 of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 201). Petition was filed in this court during vacation and it was not acted upon immediately. By some error the usual briefs and arguments on appeal were filed in the case, and the case was noted for oral argument before the petition had been passed upon. That fact was called to our attention at the time of the oral argument, and we then decided that arguments might proceed and that we would hear the petition and the cause together. We have so considered this case.

The question before this court, as it was before the trial court, is whether the verdict is against the manifest weight of the evidence, so as to warrant the court in setting aside the verdicts. It is necessary to examine the evidence.

Plaintiff Gertrude Leahy testified she is the surviving widow and executrix of the estate of Jeremiah Leahy, deceased; that on November 17, 1934, with her husband they were traveling towards Belleville on highway 161; that they were driving along about 14 or 15 miles an hour; that there was a stop sign where 161 turns south to Scott Field road; that their car made a stop there; that after they pulled away from the stop sign she noticed a rumble and that is all she remembered. When she regained consciousness, she was in the hospital and her husband had been killed. She also testifies to her injuries and to the heirs of the estate. They were driving a 1932 Chevrolet owned by Helen Scarritt, who was also riding with them. On cross-examination she testified that as she was approaching the intersection she was looking out of the window on the north side, taking in the scenery; she had been looking out of the window as they were driving along and did not see the collision, nor did she see defendant's machine until the collision. She had been looking out of the window for a distance of 600 or 800 feet. She was talking to her husband. Her husband was a careful driver. She did not see the machine stop, but she felt it. It was daylight at the time, about 4:20 in the afternoon; was a bright, sunshiny day, and countryside around there was perfectly level. There were no obstructions; there was no other traffic on the road except Mr. Willhelm's truck back from the intersection. She did not know of her own knowledge whether her machine hit Morris' car, or Morris' machine hit theirs.

George Willhelm, witness for appellants, testified that he lives in Belleville; is a highway patrolman on section 24; that on the date in question, about 4 o'clock, he delivered a check for wages to the Beaver boys at their home, which is about 1200 feet from the intersection of Scott Field, east on 161. While he was there he saw a car pass, later learning it was the car in which plaintiffs were riding. It was going 15 or 20 miles an hour. He left after the car passed and went up the road towards Scott Field in the same direction the other car had gone. He followed the Leahy car and caught up with it. At the point of the accident he was from 200 to 250 feet behind the Leahy car. The Leahy car had crossed the black line of the Scott Field road at the time of the collision--all but the rear wheel--that is, the center line. The witness testified that he saw another car going fast,--he doesn't know how fast, but at least twice as fast as the Leahy car. The Morris car hit the Leahy car just in front of the driver's seat, at the windshield column. The Morris car lifted up about 2 feet and struck the other, then dropped down and turned around. The Leahy car was forced off the road to the shoulder. The Morris car at the time of hitting this car was partly over the black line on a slant. It was on the west side of the black line of Scott Field road. The Scott Field road at that point is 18 feet wide, and at the point of intersection there is additional road which comprises the curve of highway 161, making it 4 or 5 feet wider. The Leahy car after the accident was facing directly east, about 15 feet off the edge of the west side of the Scott Field road. There was dirt that had fallen from the car on the west side of the black line. When he first saw the Morris car before the accident it was coming down the road about 40 feet...