Rowley v. Rust

• Decision Date: 08 April 1940
• Docket Number: Gen. No. 40878.
• Citation: 304 Ill.App. 364,26 N.E.2d 520
• Parties: ROWLEY v. RUST.
• Court: United States Appellate Court of Illinois

304 Ill.App. 364

26 N.E.2d 520

ROWLEY

v.RUST.

Gen. No. 40878.

Appellate Court of Illinois, First District, First Division.

April 8, 1940.

Appeal from Superior Court, Cook County; Joseph Sabath, Judge.

Action by Isabelle Rowley against John W. Rust, for wrongful death of plaintiff's husband. From a judgment on a verdict for plaintiff, defendant filed petition for leave to appeal.

Reversed and remanded. Coburn & Coburn and Louis T. Herzon, all of Chicago, for petitioner.

James B. Poynton, and Francis X. Poynton, both of South Chicago, and Thomas M. Poynton, of Chicago, for respondent.

MATCHETT, Presiding Justice.

In an action under the statute for alleged negligence of defendant, causing the death of plaintiff's husband and upon trial by jury, there was a verdict for plaintiff in the sum of $7,500, with judgment, from which defendant petitioner, by leave granted pursuant to Section 76 of the Civil Practice Act, Ill.Rev.Stat.1939, c. 110, § 200, and Rules 19 of this court and 29 of the Supreme court, Ill.Rev.Stat.1939, c. 110, § 259.29, has appealed.

April 30, 1935, plaintiff filed her complaint in which she in substance alleged that March 17, 1935, while her husband was walking in a northerly direction on Archer avenue (a public highway running north and south in the city of Chicago) and while between 107th and 111th streets (also public highways running east and west and intersecting Archer avenue), he was struck by defendant, who was driving his automobile north on Archer avenue between these intersections; that deceased was in the exercise of due care and was through the negligence of defendant struck, receiving injuries from which he died on March 23, 1935. With other negligence the complaint charged that defendant operated his car in a manner that was not only negligent but willfully, wantonly and maliciously so. At the close of all the evidence, defendant made a motion for an instructed verdict in his favor which was denied. The verdict of the jury being returned, there were motions for a new trial and for judgment non obstante veredicto which were overruled, and this appeal followed.

Defendant argues that the court erred in denying the motion of defendant for an instructed verdict in its favor and in submitting to the jury an interrogation as to whether defendant was guilty of willful and wanton negligence. Defendant also contends the evidence shows, as a matter of law, that deceased failed to exercise due care and the legal cause of his death was his own violation of a statute which prevents recovery.

There is little conflict in the evidence. Defendant offered no evidence and was not called as a witness. Paul Verhoye, who on the evening of March 17, 1935, at about 10:00 P.M., was driving his automobile north on Archer avenue road, testified that there was another car being driven north and about 400 feet ahead of him. The road was a cement pavement and at this place was a four-way lane which narrowed into a two-way road near a gas station which stood on the east side of the road. As the witness made the turn he saw an object hit by the car ahead of him. He said: “The object that was hit went to the east side. I stopped ten feet from the man that was hit. He was in the roadway to my right about four feet from the paved portion. His head was lying in a northerly direction, facing the Sag Bridge. He was lying at an angle, his head toward the pavement his feet about four or five feet from the pavement.” He says the car ahead continued until it reached a smoke house, then stopped, made a turn and came back. The weather conditions were fair and the visibility good, but it was a dark night. Verhoye said he was driving about 25 miles per hour. He passed ten feet beyond the place of the accident, which he was sure happened on the highway. The man who was struck was walking on the highway, and both the lights of defendant's car were lighted. The witness got out of his car and put a blanket over the injured man. A lady came out of defendant's car and helped put on the blanket. She was crying. The injured man was unconscious. Verhoye says that it was a dark road and there were no lights on the highway except at one place, the gas station, which was about 400 feet away from where the accident happened. As he drove along the road the windows of his automobile were closed, and it was pretty hard to hear horns. A policeman came and he left his name with the policeman.

John Bolek, an employee of the Corn Products Company, witnessed the accident. He was walking on Archer avenue in a northerly direction. He saw the “dim outline of a man” possibly 200 feet away on the east side of the road, walking north. An automobile went past him and shortly he heard an impact. He was unable to see anything from where he was standing. The car did not stop but continued about a block north. He did not hear the sound of a horn. The witness was walking home with a girl companion.

Evidence was offered tending to show that the deceased was a man of good habits, never drank and was always at home. Mr. Kramer, who testified in this regard, kept a grocery and tavern on the west side of Archer avenue in this vicinity. He said when the deceased was not working he would be over at his place.

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