McKinney v. Nathan
| Decision Date | 08 March 1954 |
| Docket Number | Gen. No. 46255 |
| Citation | 1 Ill.App.2d 536,117 N.E.2d 886 |
| Parties | McKINNEY et al. v. NATHAN. |
| Court | United States Appellate Court of Illinois |
Louis G. Davidson, Chicago, for appellant.
Eckert, Peterson & Lowry, Chicago (A. R. Peterson, Harold W. Huff, Robert G. Schloerb, Chicago, of counsel), for appellee.
Ruth McKinney and Harry McKinney filed a complaint against Edna B. Nathan, Administratrix of the Estate of Joseph E. Nathan, deceased, for damages occasioned by the alleged negligent operation of his automobile by the decedent which resulted in a collision of that vehicle with the plaintiff's automobile. There was a verdict for the defendant as to plaintiffs' claims upon which the court entered the judgment from which this appeal is taken. A verdict for $4000 on her counterclaim against Harry McKinney was set aside and judgment for the latter entered, from which a cross-appeal is prosecuted. Plaintiffs' theory is that defendant's intestate negligently failed to yield the right of way to plaintiffs' automobile which was on Harlem Avenue, a preferential highway, that he ran through a plainly visible stop sign and crossed Harlem Avenue at considerable speed, crashing violently into plaintiffs' vehicle. Defendant's theory is that if the evidence was sufficient to permit the drawing of inferences, it was the function of the jury to draw those inferences and their conclusion that the administratrix was entitled to recover upon the counterclaim is supported by the law and the evidence, and that the trial was free from substantial error other than the action of the trial court in setting aside the verdict on the counterclaim.
About 9:30 on the morning of Tuesday, July 5, 1949, a clear day and the pavements dry, plaintiffs' 1942 Chevrolet sedan and decedent's 1948 Studebaker sedan collided violently at the intersection of Harlem Avenue and 127th Street in a sparsely settled district southwest of Chicago. There were no eyewitnesses. Harlem Avenue runs north and south and 127th Street runs east and west. Both are four lane highways at the intersection and for some 350 feet approaching it. As 127th Street approaches the intersection from the west it descends slightly, about three feet in 100. Harlem Avenue is a through or preferential highway and stop signs at the southwest and northeast corners require traffic on 127th Street to stop at Harlem Avenue. About 300 feet west of Harlem Avenue at the south side of 127th Street is a sign warning eastbound drivers of the stop sign ahead. There were no speed limit signs on Harlem Avenue south of the intersection and there was no evidence of any west of the intersection on 127th Street. A photograph introduced by plaintiffs taken immediately following the occurrence shows a sign bearing the legend 'Speed Zone Ahead' immediately adjacent to the east edge of the Harlem Avenue pavement and south of 127th Street. A small real estate office building was situated at the southwest corner of the intersection about 50 feet south and west of the pavement. North and east of it were several trees. At 9:35 a. m. state highway police officers Raymond H. Stuart and James W. Lindsay received a call to go the scene of the crash and arrived there at about 9:42 a. m. approaching the intersection from the north. Officer Lindsay said that this was a blind corner so that a northbound driver would not be able to see to the west until he reached the intersection. There was no direct evidence as to the direction in which the vehicles were traveling prior to the occurrence. From the debris the officer stated that the impact took place at the intersection of the inner lanes of the two highways. Officer Lindsay was permitted to state an opinion that the Chevrolet had been northbound on Harlem Avenue and the Studebaker eastbound on 127th Street. On cross- examination he stated that the evidence upon which the opinion was based would support an equally valid and contrary inference. There is no direct evidence as to where the cars were before the collision.
The vehicles came to rest at the northeast corner, the front of the Chevrolet against a tavern building and part of it across gasoline pumps which were south and west of the building and knocking down the most southerly of the three pumps. The Studebaker stopped facing southeast off the pavement about 40 feet east and over 100 feet north, and the Chevrolet stopped about 75 feet east and 75 feet north of the point of impact. Both vehicles traveled more than 100 feet from the point of impact, which was indicated by the presence of dirt and pieces of headlight glass in the intersection, and were about 30 feet apart when they stopped. There were no skid marks leading to the point of collision. The left front corner and left side of the Chevrolet and the right front corner and the right side of the Studebaker came into violent collision. Officer Lindsay admitted that it was possible that the same parts of the vehicles would come together and that they would have ended up where he found them if the Studebaker had been going south on Harlem Avenue and turning left into 127th Street, and the Chevrolet had been going east on 127th Street. The Chevrolet was driven by Harry McKinney, a 24 year old mechanic employed and living in San Jose, California. Riding with him was his wife Ruth McKinney, a 26 year old registered nurse. The Studebaker was driven by Joseph E. Nathan, age 63, an employee of the Sanitary District, whose work consisted largely of maintaining and operating recording instruments used for the elevation of water pressure at various pumping stations, treatment plants and along rivers and canals owned and operated by that District, and who used his car in this work. After the collision the police officers found Mr. McKinney unconscious behind the wheel of his car. His wife was on the ground semiconscious. Mr. Nathan had been thrown out of his car. Both plaintiffs were unconscious or semiconscious for long periods of time, had sustained severe cerebral concussions and were unable to recall the events preceding the occurrence. Mr. Nathan sustained injuries which caused his death about noon on the day of the occurrence.
There was evidence that both McKinney and Nathan were careful drivers. Nathan lived at 5344 Harper Avenue on the south side of Chicago. His wife last saw him sometime before 5:00 a. m. on the day of his death at Galesburg, Illinois, which is about 182 miles southwest of Chicago, at which time he left there to go to work. His wife said that most of his work was at the pumping station in the vicinity of 125th Street and Michigan Avenue in Chicago. His working hours were from 8 in the morning to 4:30 in the afternoon. A fellow employee testified that one of the treatment plants where decedent called to repair instruments was located where the Calumet Sag channel crosses Harlem Avenue about at 123rd Street. The Calumet Sag channel also crosses 127th Street about two miles east of Harlem Avenue. This employee stated that decedent's headquarters were at the Calumet sewage treatment works at 123rd and South Park Avenue. Don Brown, decedent's supervisor, testified that decedent would have been there on the day of the occurrence.
Plaintiffs maintain that the verdict as to their claims is against the manifest weight of the evidence, that it was decedent's duty to stop and ascertain definitely whether he could safely proceed into the protected thoroughfare, that the physical facts demonstrate that he did neither, that where the physical facts point unerringly to defendant's liability a judgment in his favor will be reversed, that they had a right to assume that defendant would yield the right of way, were not required to anticipate that he would run through a stop sign directly into their path, that defendant's counterclaim admitted plaintiffs' allegations of the directions in which the vehicles were traveling, that evidence to the contrary could not properly be considered, that the evidence, apart from the pleadings, shows conclusively that plaintiffs were northbound and decedent eastbound, and that it was within the trial court's discretion to permit the police officer to give his opinion as an expert that plaintiffs were northbound and decedent eastbound at the time of the collision. Defendant answers that the verdict is supported by the evidence, that the physical facts point to the liability of plaintiffs, that plaintiffs failed to prove that...
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...the adverse party on such subject, an objection that such subject is not at issue under the pleadings may be waived. McKinney v. Nathan, 1 Ill.App.2d 536, 117 N.E.2d 886. If a party fails to object to evidence on the ground of variance and to point out such variance to the trial court, the ......
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