Radatz v. Tribune Co.

Decision Date24 January 1938
Docket NumberGen. No. 39657.
Citation293 Ill.App. 315,12 N.E.2d 224
PartiesRADATZ v. TRIBUNE CO.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cook County; J. L. McLaughlin, Judge.

Action on the case for personal injuries by Fred Radatz against the Tribune Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed. Robertson, Crowe & Spence, of Chicago, for appellant.

James A. O'Callaghan and Wiley W. Mills, both of Chicago, for appellee.

MATCHETT, Justice.

Defendant appeals from a judgment in the sum of $6,500 entered in favor of plaintiff in an action on the case for personal injuries. It is argued for reversal that a motion to direct a verdict for defendant at the close of all the evidence should have been given, that defendant's motions for judgment notwithstanding the verdict and for a new trial should have been allowed, and that the verdict is against the manifest weight of the evidence.

It appears from the evidence that plaintiff, then a lad 12 years of age, while riding on the tailboard of one of defendant's trucks, was severely injured when the driver of the truck backed into a lamp post at the northwest corner of the intersection of Farrell and Lyman streets in Chicago on February 11, 1922.

The driver of the truck was William Eckholm, who, the uncontradicted evidence showed, had received repeated orders from his superiors not to allow any person on the truck or wagons unless they were in the employ of defendant company. Orders to this effect were posted about the barns where the trucks were kept and had been personally given by defendant's circulation manager to the driver.

On the day in question Eckholm was driving a three-ton Packard truck; he came up to the intersection of Haynes court and Lyman street a little after 12 o'clock noon; he says he was lost, had never been there before; that he saw three boys in front of a school there and asked them where Loomis street was; he told them he wanted to go to 31st and Morgan streets. Eckholm says the boys were only three in number, and that in response to his question to one of them a boy replied, “Let me get on and we will show you.” There is a conflict in the evidence as to whether he invited the boys to get on. At any rate his evidence shows that two of the boys got on and sat in the seat beside him, while one stood on the running board of the truck. The driver also testified that he suddenly noticed “a bunch of kids” on the tailgate of his truck; that he stopped three times and chased them off while he was driving east in Lyman street toward 31st and Morgan streets. One of the boys, named Schultz, testified that he was the boy who stood on the running board, and that the boys in the seat were William Knapp and Herbert Steike. Schultz also testified that plaintiff was with the other boys when they were addressed by the driver; that all the boys got on the truck before it started; and that plaintiff got on the tail end of the truck. Schultz says the driver looked at the rear of the truck as he backed up against the lamp post, and that he was looking at plaintiff; that Steike and Knapp were boys in his class at school, and that they were at the corner of Lyman street and Haynes court where they met plaintiff; the day was cold but there was no snow or ice; plaintiff was not there when they first arrived at the corner but all four were there when the truck came up, and the driver of the truck addressed all of them. Plaintiff gave similar testimony; he says he was the last to get on the truck, and that the driver waited until he got around to the back; that the driver looked at him through the window of the cab in which he sat, and then proceeded east on Lyman street. Knapp's whereabouts at the time of the trial seem to have been unknown, and he did not testify. A statement tendng to impeach Schultz on some points was received in evidence. It was in the handwriting of defendant's former attorney and was signed by Schultz in the office of the attorney after a former trial. This written statement said that Schultz did not see plaintiff on the truck until it had gone a little past Loomis street, when he saw plaintiff sitting on the tailgate of the truck. The statement also says the driver did not look back and did not know plaintiff was on the truck. By stipulation another written statement signed by Steike was admitted in evidence, it being agreed that if he were present he would testify according to the contents of the statement. In this statement Steike said that after the truck traveled 250 feet he saw plaintiff run for the truck and hitch onto the tail board of it. All of these boys were students at the Holy Cross Lutheran School.

At the request of defendant, the court submitted to the jury the following special interrogatory: “Was the plaintiff before and at the time of the accident in question riding on the defendant's truck without the knowledge and permission of the defendant's driver?” To this question the jury returned the answer, “No.”

It also appears that no instruction was given at the request of plaintiff, while seventeen instructions covering the case from every possible standpoint were given at the request of defendant. The evidence (much of which is contained in an additional abstract filed by plaintiff) discloses a sharp conflict on material points. It is undisputed that three of the boys were permitted by the driver to ride upon the truck at the time in question, and there seems no reason why any one of them should have wished to go to 31st and Morgan streets except upon his invitation. Apparently the jury was not inclined to the opinion that permission was given to three of the boys and refused to the fourth. However, the weight of all this evidence was peculiarly for the jury and we would not be warranted in disturbing its verdict. Assuming a question of fact for the jury, there were no errors that would have justified a new trial. Defendant's contention that the court should have entered judgment notwithstanding the verdict is not essentially different from its contention that an instruction in its favor should have been given at the close of all the evidence. Denton, Adm'x v. Midwest Dairy Products Corp., 284 Ill.App. 279, 284, 1 N.E.2d 807;McNeill et al. v. Harrison et al., 286 Ill.App. 120, 2 N.E.2d 959. The controlling question in the case therefore turns out to be whether the requested instruction should have been given in favor of the defendant at the close of all the evidence. This is, of course, a question of law. The defendant vigorously contends that the instruction should have been given because it says there was no evidence in the record tending to show, or from which it could reasonably be found, that the driver in inviting plaintiff to ride on the truck was acting within the scope of his employment and within the scope of defendant's business so as to make defendant liable for negligently injuring plaintiff. While a large number of cases from different jurisdictions are...

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4 cases
  • Palmer v. Miller
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1941
    ...to the duty of defendant to plaintiff, Roberta Palmer, to exercise ordinary care toward her, were not erroneous (Radatz v. Tribune Co., 293 Ill.App. 315, 12 N.E.2d 224;Kijowski v. Times Pub. Corp., 298 Ill.App. 236, 18 N.E.2d 754, affirmed 372 Ill. 311, 23 N.E.2d 703), nor do we find error ......
  • Moran v. Borden Co.
    • United States
    • United States Appellate Court of Illinois
    • March 31, 1941
    ...242 Ill.App. 205;Blood-good v. Whitney, 235 N.Y. 110, 139 N.E. 209;Moore v. Rosenmond, 238 N.Y. 356, 144 N.E. 639;Radatz v. Tribune Co., 293 Ill.App. 315, 12 N.E.2d 224. Jacklin finished his deliveries about 1 P.M. and was given an hour for lunch; there was no restaurant within the territor......
  • Bentley v. Oldetyme Distillers, Inc., a Corp.
    • United States
    • North Dakota Supreme Court
    • April 19, 1941
    ... ... Clute, 277 N.Y. 407, 14 N.E.2d 455; Kruy v ... Smith, 108 Conn 628, 114 A 304; Doherty v ... Edwards, 227 Iowa 1264, 290 NW 672; Radatz v ... Chicago Tribune, 293 Ill.App. 315, 12 N.E.2d 225 ...          Where ... general authority (of the agent) is established, and the ... ...
  • Kijowski v. Times Pub. Corp.
    • United States
    • United States Appellate Court of Illinois
    • February 6, 1939
    ...An interesting case which we believe would enlighten us in the discussion as to liability of the defendant is that of Radatz v. Tribune Co., 293 Ill.App. 315, 12 N.E.2d 224. In this case the driver of the truck was confused about the location of the place where he was to go as directed by h......

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