Savage v. Blancett, Gen. No. 10500

CourtUnited States Appellate Court of Illinois
Writing for the CourtSMITH; CROW, P. J., and SPIVEY
Citation47 Ill.App.2d 355,198 N.E.2d 120
Decision Date27 April 1964
Docket NumberGen. No. 10500
PartiesDewey SAVAGE, Plaintiff-Appellant, v. Norman BLANCETT and Skelly Oil Company, a Corporation, Defendants-Appellees.

Page 120

198 N.E.2d 120
47 Ill.App.2d 355
Dewey SAVAGE, Plaintiff-Appellant,
v.
Norman BLANCETT and Skelly Oil Company, a Corporation,
Defendants-Appellees.
Gen. No. 10500.
Appellate Court of Illinois, Fourth District.
April 27, 1964.

[47 Ill.App.2d 356]

Page 121

Greanias & Owen, Decatur, for appellant.

LeForgee, Samuels, Miller, Schroeder & Jackson, Decatur (Carl R. Miller, Jerald E. Jackson and Robert W. Ohlsen, Decatur, of counsel), for appellees.

SMITH, Justice.

In this case, plaintiff sought damages for injuries resulting from the alleged negligent operation of defendants' truck in striking plaintiff's car from the rear. A jury trial resulted in a verdict for the defendants. On post-trial motion, the trial court first granted plaintiff's motion for new trial and denied his motion for judgment notwithstanding the verdict. The trial court granted defendants' motion for rehearing, vacated the order granting a new trial, denied the motion for new trial and entered judgment for the defendants on the jury verdict. From these determinations, plaintiff appeals.

[47 Ill.App.2d 357] Plaintiff, alone in his car, was stopped at the last car in a line of traffic on Fairview Avenue in Decatur about 125 feet north of its intersection with Eldorado Street. Defendant Blancett was driving a three-ton bulk-gas truck of the defendant Skelly Oil Company and had stopped for a red light at the Eldorado intersection. He then saw that the traffic ahead of him was stopped. When the light changed, he started in low gear, shifted to second, reached a speed of about 25 miles per hour and then hit his brakes about 20 to 25 feet from the plaintiff. When he hit the brakes, they went to the floor and his truck struck plaintiff's car in the rear propelling it into the rear of the car ahead, which, in turn, struck the car ahead of it. Blancett testified that he had tried the brakes that morning, that they were good and that they had worked up until the time of the collision. Defendants introduced evidence that Skelly drivers made monthly reports on the condition of their trucks, that safety inspections were made every six months, and that after the accident the only repair to the truck was an inch to an inch and one-half rupture in one front wheel brake hose.

It is first contended by the plaintiff that the trial court should have directed a verdict in favor of the plaintiff as a matter of law and submitted the case to the jury on the question of damages alone. Defendants filed a special defense asserting that the collision was an unavoidable accident occasioned solely by a latent defect in the brakes without prior knowledge thereof to the defendants and that such latent defect was not discoverable through reasonable

Page 122

inspection. Plaintiff filed no motion attacking this special defense, but instead denied the facts and denied that they constituted a defense to plaintiff's cause of action. Plaintiff's theory is that Ill.Rev.Stat. (1963) Chapt. 95 1/2, Par. 211 prescribing 'brake equipment required' on motor vehicles and prescribing minimum standards [47 Ill.App.2d 358] for 'performance ability of brakes'--and providing that they 'shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle' is a legislative determination that a total brake failure is negligence per se. To repudiate this theory, it is said, entitles the operator of a vehicle with defective brakes to one free injury to others and, even though technically without fault, is to shift the loss and injury to the absolutely innocent party.

To so hold is to repudiate the philosophy long established in this State that violations of the Motor Vehicle Act are only factors to be considered in determining negligence on the part of a motor vehicle operator and are not negligence as a matter of law, Smith v. Ohio Oil Co., 10 Ill.App.2d 67, 134 N.E.2d 526, 58 A.L.R.2d 680. It ignores completely the question of knowledge of such an operator of such defect and whether or not the operator acted as a reasonably prudent person in meeting his statutory obligation to maintain his brakes in good repair. In Shulman v. Chrysler Corp., 31 Ill.App.2d 168, 175 N.E.2d 590, the defendant was charged with negligence in failing to apply her brakes in time. She filed a third party complaint against the manufacturer of the automobile for indemnification based upon the negligent manufacture of the brakes. The court held that the action would not lie, that if she failed to apply the brakes in time, she was guilty of active negligence and could not be indemnified and, that if she applied the brakes and the brakes failed, she could not be indemnified because she would not be negligent and thus not liable to the plaintiff. The Court said at page 171 of 31 Ill.App.2d, at page 592 of 175 N.E.2d:

'It is equally clear from the face of the amended third-party complaint that if * * * she was free from negligence and the accident occurred as a result of a defect in the braking mechanism of which she [47 Ill.App.2d 359] had no knowledge, Halligan would be unable to recover damages from her.'

In McDermott v. McKeown Transportation Co., 263 Ill.App. 325, the Court in referring to the liability of the defendant, said:

'It would not be liable even if the rear light was not lit at the time of the accident if the jury believed from the evidence that such failure was occasioned without negligence on defendants' part.'

To hold as the plaintiff requests is to hold as a matter of law that the owner or operator of a motor vehicle is the guarantor of the mechanical integrity of his vehicle at all times. To so hold makes him an insurer as to latent defects. To so hold is to father a liability for latent defects in automobiles foreign and wholly adverse to the philosophy of our law heretofore pursued in the field of latent defects in this and other areas. We see no compelling reasons for us to embark upon such an excursion into a hitherto unexplored legalistic stratosphere. The trial Court did not err in denying plaintiff's motion for a directed verdict on the question of liability.

Plaintiff also assigns as error the admission of testimony by the automotive supervisor of Skelly Oil Company that it was the policy of that company to have visual inspection of every truck every thirty days and a monthly report to its condition by the drivers in writing. He further testified that they have a traveling inspector who inspected and drove each vehicle every six months. The local manager testified likewise and that the drivers' reports were kept in the ordinary course of business. No objection was made to this testimony and it is...

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17 practice notes
  • Tsugawa v. Reinartz, No. 5419
    • United States
    • Supreme Court of Hawai'i
    • October 31, 1974
    ...Mortimer, 125 Cal.App.2d 636, 270 P.2d 942 (1954); Kline v. Kane, 246 Md. 19, 226 A.2d 894 (1967); Savage v. Blancett, 47 IllApp.2d 355, 198 N.E.2d 120 (1964); Jaeger v. Estep, 235 Or. 212, 384 P.2d 175 (1963); Patzer v. Bowerman-Halifax Funeral Home, 370 Mich. 350, 121 N.W.2d 843 (1963); B......
  • Martin v. Kralis Poultry Co., Inc., No. 71--247
    • United States
    • United States Appellate Court of Illinois
    • June 7, 1973
    ...statement. There are only two cases cited to support this position, neither of which are on point. In Savage v. Blancett (1964), 47 Ill.App.2d 355, 198 N.E.2d 120, the trial judge's failure to give a tendered instruction was in addition to instructions which were in fact given, but given wi......
  • St. Paul Fire & Marine Ins. Co. v. Michelin Tire Corp., No. 55260
    • United States
    • United States Appellate Court of Illinois
    • May 15, 1973
    ...only 'passive' negligence. (Shell Oil Co. v. Hercules Construction Co., 74 Ill.App.2d 166, 219 N.E.2d 392; Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120.) The parties stipulated to damages in the amount of $39,000, thus relieving plaintiff of its obligation to prove the settlement a......
  • Karaskiewicz v. Allstate Ins. Co., Gen. No. 52529
    • United States
    • United States Appellate Court of Illinois
    • April 16, 1969
    ...Bentkowski v. Bryan, 299 Ill.App. 217, 19 N.E.2d 841, Halligan v. Schulman, 31 Ill.App.2d 168, 175 N.E.2d 590, and Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120. And that is all there was to the 'Memorandum of Law.' It is hard to imagine a less innocuous document. Plaintiff does not......
  • Request a trial to view additional results
17 cases
  • Tsugawa v. Reinartz, No. 5419
    • United States
    • Supreme Court of Hawai'i
    • October 31, 1974
    ...Mortimer, 125 Cal.App.2d 636, 270 P.2d 942 (1954); Kline v. Kane, 246 Md. 19, 226 A.2d 894 (1967); Savage v. Blancett, 47 IllApp.2d 355, 198 N.E.2d 120 (1964); Jaeger v. Estep, 235 Or. 212, 384 P.2d 175 (1963); Patzer v. Bowerman-Halifax Funeral Home, 370 Mich. 350, 121 N.W.2d 843 (1963); B......
  • Martin v. Kralis Poultry Co., Inc., No. 71--247
    • United States
    • United States Appellate Court of Illinois
    • June 7, 1973
    ...statement. There are only two cases cited to support this position, neither of which are on point. In Savage v. Blancett (1964), 47 Ill.App.2d 355, 198 N.E.2d 120, the trial judge's failure to give a tendered instruction was in addition to instructions which were in fact given, but given wi......
  • St. Paul Fire & Marine Ins. Co. v. Michelin Tire Corp., No. 55260
    • United States
    • United States Appellate Court of Illinois
    • May 15, 1973
    ...only 'passive' negligence. (Shell Oil Co. v. Hercules Construction Co., 74 Ill.App.2d 166, 219 N.E.2d 392; Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120.) The parties stipulated to damages in the amount of $39,000, thus relieving plaintiff of its obligation to prove the settlement a......
  • Karaskiewicz v. Allstate Ins. Co., Gen. No. 52529
    • United States
    • United States Appellate Court of Illinois
    • April 16, 1969
    ...Bentkowski v. Bryan, 299 Ill.App. 217, 19 N.E.2d 841, Halligan v. Schulman, 31 Ill.App.2d 168, 175 N.E.2d 590, and Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120. And that is all there was to the 'Memorandum of Law.' It is hard to imagine a less innocuous document. Plaintiff does not......
  • Request a trial to view additional results

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