Leoni v. McMillan

• Decision Date: 12 January 1937
• Docket Number: Gen. No. 38801.
• Citation: 287 Ill.App. 579,5 N.E.2d 742
• Parties: LEONI v. MCMILLAN.
• Court: United States Appellate Court of Illinois

287 Ill.App. 579

5 N.E.2d 742

LEONI

v.MCMILLAN.

Gen. No. 38801.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1936.

Rehearing Denied Jan. 12, 1937.

Appeal from Circuit Court, Cook County; Daniel P. Trude, Judge.

Action by Agata Leoni, administratrix of the estate of Salvatore Leoni, deceased, against James H. McMillan. Judgment for defendant, and plaintiff appeals.

Judgment reversed, and cause remanded. Guy C. Guerine, of Melrose Park (Paul W. Brust, A. H. D'Anza, and Guy C. Guerine, all of Melrose Park, of counsel), for appellant.

Braun, Anderson & Norby, of Chicago (Joseph H. Braun, Joseph P. Brodie, and Max H. Braun, all of Chicago, of counsel), for appellee.

JOHN J. SULLIVAN, Presiding Justice.

This appeal seeks to reverse a judgment entered December 5, 1935, by the circuit court upon the verdict of a jury finding defendant, James H. McMillan, not guilty, in an action brought by plaintiff, Agata Leoni, administratrix of the estate of Salvatore Leoni, deceased, against defendant for damages for wrongfully causing the death of said Salvatore Leoni, her husband.

The first count of plaintiff's declaration alleged that Salvatore Leoni was walking on and upon North avenue, near Maywood, Cook county, Ill.; that he was in the exercise of due care; that defendant was operating an automobile truck in a westerly direction on North avenue; that defendant negligently operated his truck and struck deceased, who died March 14, 1935; that defendant drove his truck at a speed greater than was reasonable and proper and thereby endangered persons rightfully on the highway; that defendant negligently operated and drove his truck without blowing his horn or giving any warning of his approach; that defendant negligently failed to keep a proper lookout and watch for persons lawfully upon the highway; that defendant negligently failed to apply his brakes in time to avoid running into deceased; that defendant negligently failed to heed the warning signs placed on the highway; that defendant wantonly and maliciously drove and operated his truck so as to cause it to run into deceased; that, while deceased was upon the highway, he became in danger of being run into by defendant, and, although defendant became aware of the danger to deceased, he thereafter negligently caused his truck to run into Leoni; and that plaintiff as the widow of deceased was appointed administratrix of his estate.

The second count of the complaint alleged that deceased “was then and there engaged in certain construction work then and there being performed upon and along said highway”; that defendant was operating a motor truck in a “westerly direction on the aforesaid North avenue, at and near the place above mentioned”; and that deceased was in the exercise of due care. This count then continued with the same allegations as the first count, heretofore set forth. Plaintiff filed his answer June 22, 1935, denying the material allegations of the complaint and at the same time an additional answer alleging that both deceased and defendant were under the provisions of the Workmen's Compensation Act (Smith-Hurd Ill.Stats. c. 48, § 138 et seq.), and that under the terms of said act “plaintiff is not entitled to maintain this cause of action.”

Plaintiff's theory is that deceased, being a workman engaged in and about the highway, was not obliged to keep a constant lookout for passing motor vehicles, and that motorists driving where men are engaged in work in and about a public highway are bound to keep their motor vehicles under proper control so that they will not injure such workmen engrossed in their work; and that the defendant, either having been warned by signs that men were working in and about the highway or having seen them so working in sufficient time to have brought his car to a stop or under proper control, was guilty of willful and wanton conduct in failing to heed the signs or his sight of the men themselves, which should have made it apparent to him that someone would be injured if he persisted in driving in the manner that he did.

Plaintiff contends that the judgment appealed from should be reversed because the trial court erred in the following respects:

“1. The trial court erred in not setting aside the verdict of the jury finding the defendant ‘not guilty’ as the evidence shows the verdict to have been clearly against the manifest weight of the evidence.

“2. The trial court erred in striking from the consideration of the jury that portion of the complaint charging the defendant with willful and wanton conduct.

“3. The conduct of defendant's counsel in stating to the jury that plaintiff had filed a claim for compensation and had received compensation under the Workmen's Compensation act was prejudicial.

“4. The trial court should have set aside the verdict and granted the plaintiff a new trial on her petition that she was taken by surprise by the testimony of the defendant, which testimony was contradicted by the affidavit of the witness, W. E. May, who was unavailable on account of illness.

“5. The court erred in permitting the use of the coroner's transcript of evidence in the cross-examination of plaintiff's witnesses, without the proper foundation having been first laid.

“6. The court erred in giving, on behalf of the defendant, instructions which suggested matters not shown by the evidence; also in giving instructions which defined the degree of care required of the deceased.”

The undisputed evidence shows that on March 14, 1935, workmen were employed constructing drainage ditches under North avenue, a short distance north of the village of Maywood, Cook county, Ill.; that about 4 p. m. of that day, deceased, who was 43 years old and in good health, with four or five other men, was so employed; that North avenue, at the place of the occurrence, was a concrete highway, running in an easterly and westerly direction, divided into two lanes, each 18 or 20 feet wide, the north lane for westbound traffic and the south lane for eastbound traffic, said lanes being separated by a dirt space or parkway eight or ten feet wide; that there was a wire fence about two or two and a half feet high north of the north edge of the north drive; that there was a dirt shoulder two or two and a half feet in width between the north edge of the north driveway and the fence; that a truck used in connection with the construction work was parked, partly on the south side of the north roadway and partly on the dirt strip that separated the north and south drives, about 15 or 20 feet west of the tunnel above which deceased was working when he was struck by defendant's truck; and that the weather was clear and the pavement dry.

There is no serious conflict in the evidence except as to a few points. Defendant's version of the occurrence, as testified to by him, is that he was driving west on North avenue with four tons of coal on his truck; that he had frequently passed over the particular portion of the highway involved; that he was driving 26 miles an hour when he crossed Fisher avenue, about 1,000 feet to the east of the point where the accident occurred, and that when he saw “these men in a group at that point,” he “pulled down around fifteen to eighteen miles an hour”; that “the first time I noticed Mr. Leoni, he crossed the street, carrying a tile to the fence”; that “I was back all of fifty to sixty feet”; that continuously thereafter his view of deceased was unobstructed; that when Leoni reached the fence “he laid the tile down”; that “at that time I was within probably three or four feet of him”; that after he laid the tile down “without looking up or giving any signs, he immediately turned and started crossing the pavement”; that “as soon as I saw him, I swerved my truck to the south”; that “he hit the right front fender on the right side of the truck * * * right by the front wheel”; that “all I could see he turned. As he turned, I swung the truck over to avoid running over him and came to a stop”; and that he stopped his truck about 20 feet west of the point of impact.

On cross-examination defendant testified that there was room for two cars to pass each other on the north section of the highway; that he was driving on the extreme north lane of that section; that he saw deceased “working there”; that his brakes were in good condition and under prevailing conditions he could have stopped his truck within 15 to 20 feet; that “the fence was two feet from the pavement”; that deceased “took two steps back to the pavement” and “he was struck”; that he did not blow a horn or give any other warning of his approach; that when deceased “had laid the tile down” over the fence to the north, his back was toward the witness “when I was away from him, before I had gotten to him”; and that he did not stop his truck at any time before deceased was struck.

Bernard Rubinstein, testifying in defendant's behalf, stated that he was driving his car west on the north drive of North avenue, some distance to the east of defendant's truck; that he was traveling at a speed of 40 to 45 miles an hour and that “the...