Myers v. Krajefska
| Decision Date | 22 March 1956 |
| Docket Number | No. 33699,33699 |
| Citation | 8 Ill.2d 322,134 N.E.2d 277 |
| Parties | Zelma E. MYERS, Adm'x, Appellee, v. Stanley KRAJEFSKA, Appellant. |
| Court | Illinois Supreme Court |
Monroe & McGaughey, Decatur, for appellant.
Henson, Morthland & Henson, Decatur, for appellee.
This is an appeal from a judgment of the circuit court of Macon County in favor of appellee, Zelma E. Myers, as administratrix of the estate of her deceased husband, as plaintiff, against Stanley Krajefska, appellant, defendant below. Plaintiff's action as administratrix was based upon fatal injuries sustained by her deceased husband while riding as a guest in defendant's automobile. The cause was tried by the court without a jury, judgment was entered in favor of the plaintiff and defendant appeals to this court because the constitutionality of section 2 of the Wrongful Death Act is challenged. Ill.Rev.Stat.1951, chap. 70, par. 2.
The complaint as amended charged that on June 14, 1953, defendant, Stanley Krajefska, drove his automobile on a certain Illinois highway, that decedent was riding with him as a guest, that decedent was free from contributory wilful and wanton misconduct, and that defendant was guilty of wilful and wanton misconduct by driving his automobile through a barricade and into a gravel hopper. Plaintiff charged defendant was guilty of one or more of the following acts: (a) failing to keep and maintain proper lookout, (b) failing to keep his automobile under proper control and being unable to stop the same or keep his automobile on the right half of the highway to avoid running into and colliding with other vehicles and objects lawfully on said highway, (c) operating his automobile at a speed greater than was reasonable and proper, having regard to the traffic and the condition of the highway, and driving his automobile at a high rate of speed in violation of section 49 of the Uniform Act Regulating Traffic on Highways, (d) failing to have his automobile equipped with brakes adequate to control the movement of his automobile to prevent its colliding with other objects lawfully on said highway, (e) failing to sound his horn in violation of section 115 of said act, (f) operating his automobile while under the influence of intoxicating liquor, and (g) otherwise wilfully and wantonly operating and driving his automobile so as to cause injury and death to plaintiff's intestate.
Defendant's answer as amended denied the charges of wilful and wanton misconduct, denied decedent's freedom from contributory misconduct and charged sections 1 and 2 of the Wrongful Death Act are unconstitutional. Defendant filed no motions attacking plaintiff's complaint as amended.
The evidence at the trial showed that plaintiff and the decedent were married and at the time of his death plaintiff and four minor children survived. On the date of the occurrence decedent visited his wife at the hospital where she was awaiting the birth of their youngest child and from the hospital decedent went to the home of a brother-in-law where he had dinner. Decedent and the brother-in-law drove to a tavern in Macon where each had two bottles of beer. They then purchased six cans of beer which they took to the Macon race track. At the race track they met defendant and his girl friend. At the races defendant drank one can of beer and part of another and when the races were called, due to rain, the parties arranged to meet at the tavern in Macon. When they met at this tavern each of the three men had a bottle of beer and after being there for half an hour they agreed to meet at a tavern in Pana. They drove south on Route 51 in defendant's automobile with defendant driving, his girl friend sitting to his right and decedent's brother-in-law to her right. Decedent sat in the rear seat. As they proceeded south at a point approximately two miles north of Moweaqua there was a bridge in a state of repair with barricades on both sides of it, with flares in front of them and a detour road leading around on the east side of the paved road. Signs both north and south of the bridge warned of the barricade and detour. As defendant travelled south on the highway after coming off the detour he saw four to six signs on the east side of the road.
The car stopped at Assumption where all the occupants except Myers went into a tavern. Here defendant and decedent's brother-in-law each had a bottle of beer. The evidence seems to indicate that Myers, the decedent, did not enter the tavern because he was asleep. Upon leaving Assumption the brother-in-law drove the car south for a mile or two and then defendant took over the driving and drove to a tavern at Pana. Decedent was still sleeping in the back seat of the car and only defendant and his girl friend entered this tavern. Here defendant had one or two bottles of beer and after a few dances they left. Defendant resumed driving his car with the girl friend in the center front seat and the brother-in-law of decedent to her right. Defendant drove north on Route 51 at a speed of approximately 50 to 60 miles per hour on the way back to Decatur. It had been raining and was misty at the time. The windshield wipers on defendant's car were working. As defendant proceeded north out of Moweaqua he saw the signs on the right hand side of the road indicating the detour ahead and approached the first sign at a speed of approximately 50 to 60 miles an hour. Defendant testified that when he was about nine car lengths south of the detour road an oncoming car blinded him with its lights causing him to 'hit the brakes all of a sudden.' When the car started to swerve because of the slick pavement he let up on the brakes and as the other car passed defendant's car went through the barricade and into the hopper. Defendant stated that when he was about one and one-half car lengths from the barricade he again applied his brakes but there was gravel and mud on the pavement causing his car to slide as though it were on ice and that he continuously had his brake applied until he struck the hopper. Defendant was the only witness who testified to the version concerning the other car. The brother-in-law was dozing at the time of the occurrence and defendant's girl friend, now his wife, was in the hospital at the time of the trial, in confinement for the birth of her child. No reason was advanced for failure to take her deposition. The circumstantial evidence indicates the decedent was still asleep in the rear seat at the time of the occurrence. Circumstantial evidence, though not conclusive, of disinterested witnesses driving north on the same highway and arriving at the scene shortly after the occurrence indicates no other automobile going in the opposite direction passed these witnesses. The other evidence in the record related to the size and number of highway signs warning of the detour, the flares, the type of barricade, the size and weight of defendant's automobile and the size, weight and structural details of the gravel hopper. Certain witnesses testified as to the slippery...
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