Proud v. Adelberg

• Citation: 290 Ill.App. 319,8 N.E.2d 678
• Decision Date: 19 May 1937
• Docket Number: Gen. No. 39142.
• Parties: PROUD v. ADELBERG ET AL.
• Court: United States Appellate Court of Illinois

290 Ill.App. 319

8 N.E.2d 678

PROUD

v.ADELBERG ET AL.

Gen. No. 39142.

Appellate Court of Illinois, First District, Third Division.

May 19, 1937.

Appeal from Circuit Court, Cook County; Daniel P. Trude, Judge.

Action by Hazel Proud against Arthur J. Adelberg and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded. Robertson, Crowe & Spence and Eugene P. Kealy, all of Chicago, for appellants.

Wright & Kamin, Edward T. Duday, and Alfred Kamin, all of Chicago, for appellee.

DENIS E. SULLIVAN, Presiding Justice.

This is an appeal from a judgment entered in the circuit court for $2,000 in favor of plaintiff, Hazel Proud, for personal injuries which she received while riding in the automobile owned by Arthur J. Adelberg which, at the time of the accident, was being driven by Lillian Berndt, and from which judgment the defendants bring this appeal.

The suit was brought under the so-called “Guest Statute” of the Illinois Motor Vehicle Act (Smith-Hurd Ill.Stats. c. 95 1/2, § 58), and the declaration consisted of one count, in which plaintiff charges that Lillian Berndt was the agent of the other defendant Arthur J. Adelberg; that the plaintiff was their passenger; and that the defendants individually and by agent or servant with conscious indifference to surrounding circumstances and conditions, willfully and wantonly drove the said automobile off the highway into a ditch, resulting in the injuries of which plaintiff complains, etc.

Answers denying the allegations were filed by the defendants. No questions are raised as to the pleadings.

The facts as disclosed by the evidence are substantially as follows: The plaintiff, a young lady about 23 years of age at the time of the accident, was one of a party of four women who were going by automobile from the home of defendant Adelberg, which was located at 3040 North Whipple street, Chicago, to a golf course located on Lake avenue, about one-half mile east of Waukegan road, west of the village of Wilmette. The defendant Arthur J. Adelberg is a practicing dentist with offices on the northwest side and who resides at 3040 North Whipple street with his wife and family.

The evidence further discloses that on the evening of August 12, 1932, plaintiff went to Dr. Adelberg's office regarding some dental work; that plaintiff knew the defendant Dr. Adelberg, having been previously introduced to him by her husband who had known the doctor for some years; that at the doctor's office she and her husband met two men friends of the doctor; that some conversation was had about the men going out to play golf on Lake avenue, near Wilmette, and it was finally agreed that they would all go to Dr. Adelberg's home at 3040 North Whipple street; that at the doctor's home they met Mrs. Lillian Berndt, a neighbor of the Adelbergs who was visiting there when they arrived, and it was agreed that the four men would go out to the golf course and that the plaintiff, Mrs. Lillian Berndt, codefendant, Mrs. Adelberg, wife of Dr. Adelberg, and a Miss Lois Helquist, a niece of Mrs. Adelberg, would drive out later in Dr. Adelberg's car; that the doctor's wife did not drive an automobile, and the doctor gave the keys to his car to Mrs. Lillian Berndt so that she might drive it; that Mrs. Lillian Berndt was an experienced driver, having driven a car for eleven years and having driven the Adelberg's car on several previous occasions.

The evidence further discloses that the automobile in which plaintiff was a passenger was driven to Elston avenue, and then on Milwaukee avenue to the Waukegan road and then north on Waukegan road; that the maximum speed on the trip was between 35 and 40 miles an hour; that Waukegan road is a four-lane highway, and Lake avenue, which is not a through street but ends at Waukegan road, is also a four-lane highway for a distance of about 250 feet east of Waukegan road, where it narrows down to a two-lane highway; that the defendant Mrs. Berndt had never driven on Lake avenue before; that it was a mooonlight night and the lights on the automobiles were lighted and cast a light on the pavement for approximately 50 feet ahead of the automobile; that as the defendant Lillian Berndt continued east the automobile went off the paved portion of the road and on to what is known as a “shoulder” of the pavement, being a strip of gravel about two feet wide and beyond that was a strip of grass which sloped down into a ditch; that when the automobile was on this strip of grass, the defendant Mrs. Berndt tried to turn the car back on to the road, but it slid down after traveling about fifty feet and struck a culvert, injuring the plaintiff as well as the driver of said automobile.

Hazel Proud, the plaintiff, testified that the defendant Mrs. Lillian Berndt, at the time of the accident, had her head turned and was talking to the other parties in the back seat, which said defendant denies; that when the car turned east on Lake avenue she said to the defendant, “Oh, lady, you are off the road,” and that defendant continued to drive this way, except that she may have put on the brakes as they slowed down, until they slid into the ditch; that defendant had practically abandoned the car until it landed in the ditch and hit the cement culvert which was over the ditch.

Plaintiff further testified that on the way out to the golf course the defendant Mrs. Berndt drove the car at a speed of from 50 to 55 miles an hour while driving on Waukegan road; that when she turned the corner at Lake avenue she was going at the rate of 35 miles an hour and made a wide turn, going on to the left side of the street because of her speed. This evidence was contradicted by the other witnesses who stated that they traveled at a speed of 30 to 40 miles an hour and that the defendant Mrs. Berndt, testified that she went around the corner at Lake avenue at about 22 miles an hour. Plaintiff further testified that she was annoyed by the defendant looking around constantly.

There is no evidence in the record as to what is supposed to be the legal and proper speed in that territory, and there is no charge that defendant violated any law or any ordinance, nor is there any evidence as to the nature of the territory, whether it was built up or congested, or a typical country highway.

The defendant Lillian Berndt testified that she had driven an automobile for nearly eleven years; that she had driven Dr. Adelberg's car several times prior to the time of the accident; that she drove the car on the occasion in question at the rate of 35 to 40 miles an hour; that she had never driven on Lake avenue prior to the time of the accident; that as she turned on to Lake avenue, the clear headlights of an automobile approaching from the opposite direction blinded her so that she could not see that Lake avenue suddenly tapered down from a four-lane highway to a two-lane highway; that the automobile went about 50 feet after the lights blinded her; that she had been driving on the shoulder of the road about 50 feet before she realized it and that she then felt the car slipping and...