Pagenkamp v. Devillez

• Decision Date: 10 December 1935
• Docket Number: No. 5493.,5493.
• Citation: 80 F.2d 485
• Parties: PAGENKAMP v. DEVILLEZ.
• Court: U.S. Court of Appeals — Seventh Circuit

80 F.2d 485 (1935)

PAGENKAMP v. DEVILLEZ.

No. 5493.

Circuit Court of Appeals, Seventh Circuit.

December 10, 1935.

Philip G. Listeman and John M. Karns, both of East St. Louis, Ill., for appellant.

Preston K. Johnson, of Belleville, Ill., for appellee.

Before EVANS and SPARKS, Circuit Judges, and MAJOR, District Judge.

MAJOR, District Judge.

This is an appeal from a judgment entered by the District Court on a verdict directed by the court at the conclusion of plaintiff's testimony in an action for damages on account of alleged personal injury.

There is little, if any, dispute concerning the facts. Briefly, they disclose plaintiff, a woman sixty years of age, was, on the 17th day of March, 1933, riding as an invited guest in the rear seat of an automobile driven by one W. R. Porter. Seated in the front seat with the driver was the thirteen year old daughter of plaintiff. The car was being driven in a northerly direction on Illinois Route No. 142 where the same intersects Route No. 1, which runs in an easterly and westerly direction, both of which routes are paved highways. As the driver of the car approached the intersection, he stopped his car some 25 to 30 feet south of the southerly edge of Route No. 1 and at or near a stop sign. Looking to the east he saw an automobile on Route No. 1 some 500 to 600 feet east of the intersection and approaching the same at a rate of speed estimated by witnesses other than the driver at 50 miles per hour. Starting his car in second gear, the driver proceeded in a northerly direction at a speed of some 12 miles per hour, and just after passing the center of Route No. 1 this car was struck on its right side by the car approaching from the east, or right-hand side. It was in this collision that plaintiff suffered the injuries complained of.

The driver also saw the approaching car when it was within 10 to 12 feet of his car. Plaintiff's daughter in the front seat likewise saw the approaching car some 500 feet from the intersection and again a few feet before the collision. Plaintiff, as the car approached the intersection, was asleep, or nearly so, and neither looked nor knew of the approaching car until the collision occurred.

The trial court directed a verdict on the ground that the plaintiff, as a matter of law, was guilty of contributory negligence. The only question presented by this appeal is whether the trial court erred in this respect.

The law is well established that a passenger in an automobile is required to exercise reasonable care under the circumstances, or, in other words, must use the same care that a reasonably prudent passenger would use under like circumstances. It is likewise well settled that negligence bars a recovery only when it directly and proximately contributes to the injury. The courts have oftentimes had occasion to apply these propositions of law in cases presenting a variety of facts. Generally it is held that the question as to whether or not a plaintiff is guilty of contributory negligence is one of fact rather than of law. It is only the latter when the court can say from the evidence that all reasonable minds would reach the same conclusion.

We are cited a number of decisions of state courts dealing with the question as to whether a passenger asleep at the time of an accident is, as a matter of law, guilty of contributory negligence. These decisions are not entirely in harmony, but the greater weight seems to support what seems to us the better rule, namely, that under most circumstances such conduct presents a question for the jury.

In the recent case of Smith v. Courtney, 281 Ill.App. 530, on page 538, which was an action for damages growing...