Matkins v. Fenorsky

• Decision Date: 01 October 1952
• Docket Number: Gen. No. 52M1
• Citation: 108 N.E.2d 373,348 Ill.App. 125
• Parties: MATKINS v. FENORSKY et al.
• Court: United States Appellate Court of Illinois

Page 373

108 N.E.2d 373

348 Ill.App. 125

MATKINS v. FENORSKY et al.

Gen. No. 52M1.

Appellate Court of Illinois, Fourth District.

Oct. 1, 1952.

James O. Monroe, Jr., Collinsville, Ill., Manuel Wiseman, Alton, Ill., Francis Sage, Kalamazoo, Mich., for appellant.

Kramer, Campbell, Costello & Wiechert, E. St. Louis, Ill., for appellees.

CULBERTSON, Presiding Justice.

This is an appeal from a judgment entered by the Circuit Court of Madison County in favor of appellees, Steve Fenorsky, George Fenorsky, and Anna Fenorsky (hereinafter collectively called defendants on appeal), and as against appellant, Wayne Matkins (hereinafter called plaintiff). Nonsuit was taken against defendant Gaertner before the trial and he is not a party on appeal at this time.

The instant case proceeded to a trial on count two of the complaint, which charged that the defendants were respectively the owner and operator of a tavern, and owners of the premises, and that on December 7, 1948 Carl Gaertner was sold or furnished intoxicating liquors in the tavern, which caused the intoxication in whole or in part of said Gaertner, and that by reason thereof and as a direct and proximate result of the intoxication Gaertner struck and injured plaintiff with his automobile.

The facts as disclosed by the record show that Gaertner, who was then twenty years of age (and against whom suit was dismissed just before the trial commenced), had picked up a lady friend in his automobile and had gone to the Wedge Cafe operated by defendant, Steve Fenorsky. While Gaertner was at the tavern he drank three bottles of beer between the hours of 11:00 p. m. and 12:00 midnight. He left the tavern at about midnight and drove to a certain location where he parked and talked to his companion for a little over three hours, until she boarded a bus. He then drove back along route 40 and by-pass 40, about twelve miles out of downtown East St. Louis. There is a four-lane-highway approaching the intersection of route 40, and as the intersection merges, at that point it becomes an eight-lane-highway with the lanes divided by black lines. Gaertner became confused by all the black lines and took neither of the four lanes into Collinsville, but drove up over the curb of a traffic island, knocked down the traffic signs, and struck plaintiff Matkins, throwing him to the highway. Matkins was severely injured and suffered a brain concussion, a fracture of both the left and right wrists, and an aggravated fracture of the left leg. As a result of his injuries his left leg was amputated just above the knee and he thereafter was required to use an artificial limb.

The basic issue in the case was whether or not Gaertner was actually intoxicated. Gaertner testified that he started feeling 'groggy' after he left the tavern. He was slow in moving, and felt heavy all over and he did not feel this way before he had the beer. He still felt groggy when he reached the point of the accident. There was evidence of State Policemen who saw Gaertner after the accident that Gaertner's reactions, in the opinion of the State Policemen, were normal and that he did not smell of liquor.

The cause was tried before a jury. Ruling on a motion for directed verdict at the close of all the evidence was reserved by the Court, and a verdict of the jury in favor of plaintiff and as against defendants was returned in the sum of $12,600, and thereafter defendants filed a motion for judgment notwithstanding the verdict, and in the alternative, for a new trial. The Trial Court granted the defendants' motion for judgment notwithstanding the verdict...