Rutschman v. Trybula

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

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.

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 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 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 roadway after the police arrived and that he drove the auto home that evening without further incident.

[1-3] When, in a negligence action, a defendant raises a defense of latent defect or sudden mechanical failure, the burden is upon the defendant to show the existence of such defect by evidence of the 'most convincing nature.' (See Savage v. Blancett, 47 Ill.App.2d 355, 362, 198 N.E.2d 120 (1964) citing with approval Hassell v. Colletti, 12 So.2d 31, 32 (La.App.1943).) If such convincing evidence Has been presented, but plaintiff's counsel has been content to submit the issue of defendant's negligence to the jury without specific instruction as to defendant's burden of proving latent defect, plaintiff may not complain that a jury verdict for defendant is against the manifest weight of the evidence. (See McKinsey v. Morrissey, 12 Ill.App.3d 156, 299 N.E.2d 533 (1973) and Truemper v. Bowman, 17 Ill.App.3d 677, 678--680, 307 N.E.2d 735 (1974).) However, if plaintiff has made a Prima facie case of negligence against the defendant, and defendant offers in defense only his naked statement that such defect existed, we believe the defendant's burden of proving latent defect by evidence of a most convincing nature has not been met as a matter of law. Under these circumstances the reviewing court may consider whether a jury verdict for defendant is sustained by the weight of the other evidence presented.

In the case at hand, the defendant stated that his brakes failed without warning, although they worked normally prior to and following the accident. Just after the accident he was able to drive the car home without further difficulty. The claimed brake failure was not supported by corroborating testimony (See McKinsey v. Morrissey, supra, 12 Ill.App.3d 157, 299 N.E.2d 533), nor by testimony regarding specific defects found or repairs performed (See ...