Rutschman v. Trybula, No. 74--237

• Court: United States Appellate Court of Illinois
• Writing for the Court: THOMAS J. MORAN
• Citation: 346 N.E.2d 34,38 Ill.App.3d 298
• Parties: Ruby A. RUTSCHMAN, Plaintiff-Appellant, v. John S. TRYBULA, Defendant-Appellee.
• Docket Number: No. 74--237
• Decision Date: 13 April 1976

Page 34

346 N.E.2d 34 38 Ill.App.3d 298 Ruby A. RUTSCHMAN, Plaintiff-Appellant,
v.
John S. TRYBULA, Defendant-Appellee. No. 74--237. Appellate Court of Illinois, Second District, Second Division. April 13, 1976.
Rehearing Denied May 12, 1976.

Page 35

[38 Ill.App.3d 299] Peregrine, Stime, Henninger & Newman, Wheaton, for plaintiff-appellant.

Popejoy, Nelson, Lucas & Speer, Wheaton, for defendant-appellee.

THOMAS J. MORAN, Justice:

Plaintiff sued for injuries allegedly suffered when her car was struck from the rear in a five-car, chain-reaction collision initiated by the car driven by defendant. The trial court denied plaintiff's motions for a directed verdict and for a new trial after a jury verdict for defendant.

On appeal, plaintiff asserts: (1) the trial court erred in denying plaintiff's motion for a directed verdict; (2) the jury's verdict was against the manifest weight of the evidence; (3) reversible error was committed by defense counsel in referring to his client as a 'retired carpenter'; and (4) the trial court improperly denied plaintiff's motion to amend her pleadings to conform with the proof.

At approximately 5:00 p.m. on November 3, 1970, plaintiff was a passenger in a car driven by her husband. While southbound in the right hand lane of Route 83 (at the point of this occurrence, a four lane highway with a 12 foot gravel shoulder) plaintiff's car stopped for a traffic light. While stopped, plaintiff's car was struck from the rear by a car operated by one Louise Smith, whose car had just, in turn, been struck, by [38 Ill.App.3d 300] defendant's car. No issue of plaintiff's contributory negligence was raised.

Defendant testified as follows. Just prior to the impact, he was traveling at 20 m.p.h. on a slight downgrade. He first saw the line of cars ahead, in his lane of traffic, from a distance of about 200 feet. He was 150 feet away, traveling at 15 miles per hour, when he first applied his brakes, which did not hold although he pumped them twice. He turned his vehicle to the right in an attempt to avoid the collision but when his car came to rest it was predominantly in the same lane of traffic

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with only the right front wheel a foot and a half off of the roadway. He did not attempt to use the emergency brake. Immediately after the collision he noticed that his brake pedal was bent to the right; it had not been bent before.

There was no evidence that the shoulder of the road was unavailable, that the pavement was other than dry, or that defendant's vision was obstructed. Defendant maintained that his brakes never malfunctioned before or after the collision, that in fact they were 'there' when he moved the vehicle off the...