Rzeszewski v. Barth

• Decision Date: 13 December 1944
• Docket Number: Gen. No. 42961.
• Citation: 324 Ill.App. 345,58 N.E.2d 269
• Parties: RZESZEWSKI et al. v. BARTH.
• Court: United States Appellate Court of Illinois

324 Ill.App. 345

58 N.E.2d 269

RZESZEWSKI et al.

v.BARTH.

Gen. No. 42961.

Appellate Court of Illinois, First District, Third Division.

Dec. 13, 1944.

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

Action by Raymond Rzeszewski, a minor, by Natalie Rzeszewski, his mother and next friend, and another, against Paul M. Barth, for damages resulting from an automobile collision.From a judgment for defendant, plaintiffs appeal.

Affirmed.

Irving G. Zazove, of Chicago, for appellants.

Eckert & Peterson, of Chicago (A. R. Peterson and Owen Rall, both of Chicago, of counsel), for appellee.

BURKE, Presiding Justice.

Raymond Rzeszewski, a minor, by Natalie Rzeszewski, his mother and next friend, and Frank Rzeszewski, filed their complaint of two counts in the Circuit Court of Cook County against Paul M. Barth.The first count, in behalf of Raymond Rzeszewski, alleged that on September 19, 1941, he was driving his father's Buick automobile in a westerly direction on 127th Street in Worth, Illinois, ner the intersection of Ridgeland Avenue; that he was in the exercise of due care; that defendant was driving eastwardly along 127th Street; that defendant was negligent in operating his automobile at a high and dangerous rate of speed, failing to keep his automobile under proper control, failing to keep a proper lookout, failing to have his car equipped with brakes adequate to stop and control the automobile, and in operating it on the wrong side of the highway.He alleged personal injuries resulting directly and proximately from the negligence charged and asked damages in the sum of $25,000.In the second count Frank Rzeszewski, the father, alleged the same acts of negligence; also, that he was the owner of the automobile; that it was destroyed and that he was deprived of its use.He asked damages of $2,000.Answering, defendant denied that plaintiffs were in the exercise of due care; denied negligence on his part; adverred specific acts of contributory negligence and that any damages suffered by plaintiffs were not due to any fault or negligence on his part.At the close of all the evidence, plaintiffs' motion for a directed verdict was overruled.The jury returned a verdict of not guilty.Motions by plaintiffs for a judgment notwithstanding the verdict and in the alternative, for a new trial, were denied.Judgment was entered on the verdict and plaintiffs appeal.For convenience we will refer to Raymond Rzeszewski as the plaintiff.

Plaintiff became 19 years of age on August 17, 1941.He lived at 5704 South Western Avenue, Chicago, and was a high school student.On Friday, September 19, 1941, he was driving his father's Buick automobile in a westerly direction on 127th Street.Riding with him was a girl friend, Jessie Plucinski, 18 years of age.They were out for a ride.The car turned into 127th Street from Western Avenue.The car was in good mechanical condition.One Hundred Twenty Seventh Street runs in an easterly and westerly direction.The street is a two lane country concrete highway, running through farm land.The collision occurred on 127th Street, a short distance east of Ridgeland Avenue, in Worth, Cook County, Illinois.The scene of the occurrence was west of Central Avenue, which according to the numbering system, is 5600 west, and east of Ridgeland Avenue, which is 5800 west.South of the pavement at the place where the collision took place, according to the testimony favorable to plaintiff, there was an 18-foot grass shoulder, and south of the shoulder there was a ditch, the ditch being 5 feet north of a farm fence.The depth of the ditch is not stated, but one of plaintiff's witnesses, a farmer who lived in the neighborhood, testified that a vehicle cannot drive over the ditch.A driveway extended from the pavement of the eastbound lane south to a farm house.As part of this driveway, there was a culvert for the passage of water through the ditch.The collision occurred approximately 40 feet east of the driveway.There is another farm driveway, with a culvert, also on the south side of the highway, 125 to 200 feet east of the driveway first described.When about 5 miles west of Western Avenue there was a car in front of plaintiff and one behind him.The three cars were moving in a westerly direction.The car in front remained about a half block ahead of him.He had followed this car, which was owned and being driven by Edward C. Maroney, all the way from Western Avenue.He first noticed the car back of him through his rear vision mirror two or three blocks before the collision.This car was being driven by Roman Narvid.Narvid accelerated the speed of his cr by moving to the left, or into the lane for eastbound traffic.He then drove his car into the westbound lane in front of plaintiff's car and behind Maroney's car.The Narvid car remained there only a brief period of time, when it again moved to the left into the eastbound lane to pass Maroney's car.At this time Paul M. Barth, the defendant, was driving his 1937 four door Dodge sedan in an easterly direction on 127th Street.This car was in good mechanical condition.He was returning from the Oak Hills Gold Club, located at 131st Street and 80th Avenue, Orland Park, where he had played golf.There was evidence that defendant's car was being driven at a speed of 30 to 35 miles an hour in the eastbound lane.Witnesses for defendant did not see anything unusual about the operation of his car.Mr. Maroney testified that ‘all of a sudden a car pulled out from behind me and just about the time their rear wheels got even with my front wheels this other car [defendant's] was practically on top of us,’ that defendant‘had to pull off the road in order to keep from hitting the other car,’ and that the car which went off the road evidently lost control.The first thing Mr. Maroney noticed was the Narvid car ‘that pulled over behind me and it practically got even with me and I noticed the other car coming, and I felt that the three of us couldn't pass on a two lane road.’He also testified that the car which passed him (the Narvid car) was distinguished from the other cars which passed him on the same evening because it ‘shot out real quick’; and that ‘it was just like you accelerate your car, probably gave her the gas and shot around.’There was testimony that the Narvid car was traveling at least 35 or 40 miles an hour; that at the time it got even with the Maroney car, Mr. Maroney saw defendant's car coming, and that when the rear wheels of the Narvid car got about even with the front wheels of Maroney's car, Navid and Barth ‘were practically going together’ and that Barth's car ‘had to turn clear off the road.’When defendant's car went off the road it was moving at approximately the same rate of speed as before it was forced off the road.The speed of his car was reduced about 5 miles an hour as he got back on the highway.Mr. Maroney testified that defendant seemed to lose control of his car and he heard the crash in a fraction of a minute; and that it all happened in a few seconds.Mr. Maroney saw defendant's car, from his rear vision mirror, come back onto the pavement and estimated that defendant's car went a total of 75 to 100 feet after passing his (the Maroney) car.A witness who examined the tire marks shortly after the occurrence, testified that defendant traveled 35 or 40 feet on the pavement in a generally northeasterly direction.Defendant's car was completely off the road.He testified that when his car got back on the pavement it was going 30 miles an hour.The left front of defendant's car came in contact with the left front of plaintiff's car.The impact took place in the westbound traffic lane.Defendant testified that part of his car was over the line ‘on the wrong side of the highway’; that it all happened so quickly he did not know how fast he was traveling at the time of the impact, but that he would imagine it was 30 miles an hour; that it happened so quickly that he did not know how far south of the pavement he was before he turned back to the left; that he attempted to get back on the highway; that it all happened so quickly that he imagined he looked to see if there was any traffic coming, but that he couldn't say, but that he did not see any traffic coming along at the time he immediately pulled back on the highway; that he does not remember whether he applied his brakes; and that he intended to turn on his own side of the road, but that he evidently lost control of the car.He denied that the reason he could not stay on his side of the road was that he was going too fast and stated that he did not believe that speed contributed in the slightest to the collision.

It was dark at the time of the collision.The driving lights of the 4 cars were burning.Mr. Maroney further testified that the incident he described, defendant's car leaving the pavement, coming back on and striking plaintiff's car, ‘all happened in about two or three seconds.’Plaintiff and Miss Plucinski were seriously and permanently injured.The Buick car was a total wreck.The left front end of defendant's car was badly smashed, showing the violent physical force with which the cars came together.Maroney brought his car almost to a stop.Through his rear view mirror he saw people coming to take care of the occupants of the cars which had collided, and he followed the car that passed him (Narvid's car).This car pulled into a ‘place that sells red hots,’ about two blocks west of Ridgeland Avenue.When the Narvid car arrived there, Narvid turned off the lights and he and his companion sat in the car.Maroney parked his car behind the Narvid car so as to prevent the occupants from moving their car and called the State Police Station.Two policemen responded in about 20 minutes.Maroney testified that he‘turned them over’ and that he had ‘nothing further so do with it’.Plaintiffs state that defendant testified that he saw ‘the lights...