Nelson v. Armistead

• Decision Date: 07 November 1945
• Docket Number: Gen. No. 42665.
• Citation: 63 N.E.2d 648,327 Ill.App. 184
• Parties: NELSON et al. v. ARMISTEAD.
• Court: United States Appellate Court of Illinois

327 Ill.App. 184

63 N.E.2d 648

NELSON et al.

v.ARMISTEAD.

Gen. No. 42665.

Appellate Court of Illinois, First District, Third Division.

Nov. 7, 1945.

Appeal from Circuit Court, Cook County; Victor Hemphill, Judge.

Action by Albert Nelson, administrator of the estate of Louis Albert Nelson, deceased, and Dorothy Peyton, administratrix of the estate of John A. Peyton, deceased, against Floyd Armistead for the wrongful deaths of plaintiffs' intestates as the results of defendant's automobile, in which intestates were riding as guests, crashing through the ice of a lake. Judgment for defendant, and plaintiffs appeal.

Affirmed.Royal W. Irwin and James A. Dooley, both of Chicago, for appellants.

Charles E. Green, of Chicago, for appellee.

LEWE, Justice.

Plaintiffs appeal from a judgment in favor of defendant entered on the verdict of a jury which found for defendant, in a suit brought under the Injuries Act to recover damages resulting from the wrongful deaths of plaintiffs' intestates, Louis Nelson, aged 10, and John Peyton, aged 5, while riding as guests in defendant's automobile.

On Sunday, January 23, 1938, the defendant, Floyd Armistead, drove his automobile, an Oldsmobile four-door sedan, from Chicago to Pistakee Lake in Lake County, Ill., accompanied by his nephew Ruben Armistead and one Albert Nelson, father of Louis Nelson, for the purpose of fishing through holes cut in the ice. When they reached the south shore line of a v-shaped inlet in the southeastern portion of the lake, Nelson walked out on the ice 25 or 30 feet, to make certain that it was of sufficient thickness to sustain the weight of the automobile and its passengers. After examining the ice, Nelson assured the defendant that it was ‘O. K.’ Then, under Nelson's guidance, defendant drove his car in a northerly direction over the ice about 100 feet from shore, following the irregular shore line of the v-shaped inlet to a place known as LeMoon's Point, where he proceeded to the west about a quarter of a mile. Here by prearrangement they met other persons who constituted their fishing party.

Defendant's car arrived at the fishing grounds about 11:30 a. m. After fishing for approximately two hours, Howard Peyton, father of John Peyton, deceased, suggested to defendant that he drive his car to the automobile of one Edward Murphy, also a member of the fishing party, to get more fishing tackle. Murphy's car was parked on the shore near the base of the v-shaped inlet and directly south of the point where the defendant and others had been fishing. About 1:15 p. m., the defendant, accompanied, by Harold Murphy, son of Edward Murphy, Louis Nelson, John Peyton, and one Jess Lynn, proceeded to drive directly south toward the Murphy car. After defendant's car had traveled about 1,000 feet it crashed through the ice, leaving about six inches of the top protruding above the water. As the car submerged, Murphy, Lynn and the defendant managed to extricate themselves almost immediately, but the young boys, Louis Nelson and John Peyton, were brought to the surface after some delay. Bruce Balding, a doctor who happened to be in the vicinity, came to the scene of the tragedy a short time after the accident. He administered drugs and artificial respiration to the boys, but the resuscitative measures proved futile.

The gist of the amended complaint was that the defendant wantonly and wilfully drove his automobile across the ice in the lake where it was ‘thin and insecure’. Defendant's answer and amendment of the answer to the amended complaint aver (a) that both of the intestates of the plaintiffs were guests riding in the automobile of the defendant without payment for such ride, and that the occurrence was not caused by any wilful or wanton conduct on the part of the defendant; (b) that the fathers of both of plaintiffs' intestates were present and consented to plaintiffs' intestates becoming guest passengers under the circumstances, and thereby were guilty of wanton and wilful misconduct contributing to cause the alleged damages to the plaintiffs. Plaintiffs' contentions are that the defendant was guilty of wilful and wanton conduct in driving his automobile directly south over a much exposed area of ice instead of following the route along the eastern shore line where the ice was safe; that the verdict of the jury is against the manifest weight of the evidence; that defendant's counsel's argument was prejudicial; and the court erred in instructing the jury.

Plaintiffs introduced the testimony of Jess Lynn, Albert Nelson, and Dr. Balding, who testified by deposition, as to the occurrence. Lynn testified that around 11:30 a. m. he walked out on the ice with Albert Nelson's son Louis; the weather was clear and the temperature a little above freezing. As they walked out, the ice began to get sloppy. There were at least a hundred cars scattered in groups of two to four in different spots. About the time he got into the defendant's car he saw the defendant talking with Nelson. While they were driving south, headed for the Murphy car, he observed water on the ice about them and said to the defendant, ‘Armistead, you are getting over where the ice is bad.’ Defendant did not respond and the witness repeated the same statement, and was about to repeat it again when the defendant said, ‘No, I am going the right way; this is the way I come out this morning’. Lynn did not ask defendant to stop the automobile or turn to the right or left. Defendant continued to drive south in a straight line. Lynn also testified that some of the puddles of water on the ice were two or three inches deep and three or four feet square or larger.

Albert Nelson, father of Louis Nelson, one of the victims of the accident, testified that before they drove onto the ice he walked out 25 or 30 feet and then returned to the defendant's car and said, ‘Well, let's go. It is just as strong as it was last Sunday’. While they were proceeding north, ‘there were tire marks on the surface of the ice up to LeMoon's Point,’ but beyond that no tire marks were visible; that as they were driving out to the fishing grounds, the ice appeared different from what it was a week before; there was slush and there were pools of water to the left. When defendant was about to start back toward the Murphy car, witness' son Louis asked permission to ride with defendant, which was granted by Nelson, the father. Nelson then told defendant to head straight for the ‘tall stairs', after which Nelson paid no further attention to the direction defendant's car traveled, since he expected defendant ‘to use his own judgment’.

Dr. Bruce N. Balding, who was not acquainted with any of the occupants of the car, testified that there were tire marks along the shore to LeMoon's Point, and characterized this as the normal route of approach. There were no signs marking the way for cars to travel to this fishing place, nor were there any signs indicating where there might have been thin ice.

For the defense, six witnesses, including the defendant, gave testimony as to the occurrence.

Defendant testified as follows: That he lived in Chicago and operated a bakery there; he had known Albert Nelson, father of Louis Nelson, since 1922, and Howard Peyton, father of John Peyton, since 1934; that at the time of the accident Howard Peyton was employed in defendant's baking establishment. The first time he had fished through the ice at Pistakee Lake was in 1937, when he was accompanied by Albert Nelson. On the Sunday preceding the occurrence in question, he had fished through holes at approximately the same place, with Nelson and Peyton. He was not ‘familiar with the lake at all.’ When they reached the southern shore of the v-shaped inlet, Nelson, after examining the ice, said, ‘It is perfectly safe as it was last Sunday. It is strong enought to hold a freight train.’ They took the same course as on the Sunday before, and saw many people fishing there. Peyton asked the witness to get more fishing equipment and tackle, and then the Nelson boy and the Peyton boy asked their fathers, and were given permission to accompany defendant. The little Peyton girl wanted to go too, but her father told her ‘there were plenty in the car now’. Defendant further testified, ‘I headed back for the same white building that was visible where we had entered the lake that morning; there was moisture on the ice by that time, and no tracks of any kind were visible; as far as I know I was going over the same route that we had come in the morning; to the best of my knowledge we were about fifteen feet from the route we had used to go out in the morning; I don't remember seeing the tall stairs; I was always guided by the white house.’ He further testified that this was the first time he had driven across the ice without Nelson's guidance. Defendant denied that Jess Lynn said anything to him while he was driving.

John Pitzen, a resident of Johnsburg, Ill., and investigator for the Department of Conservation, testified that the tracks made on the lake by automobiles had melted off around noon; that there was water over the whole lake that day and tire marks were not distinguishable any more; and that he did not know any of the members of the fishing party.

Frank Bella, testifying in behalf of the defendant, said there were several hundred automobiles on the ice; and that he helped remove the boys from the defendant's car after it broke through the ice.

Ruben Armistead, nephew of the defendant, testified that he owned and operated a wholesale butter and egg business; that when they reached the south shore of Pistakee Lake, Nelson got out and went on the lake and said that the ice was about 18 inches thick. He did not see any cracks in the ice, nor were there any warning signs directing automobiles to take...