Slovinski v. Beasley
| Decision Date | 02 November 1942 |
| Docket Number | Ag. No. 4. |
| Citation | 45 N.E.2d 42,316 Ill.App. 273 |
| Parties | SLOVINSKI v. BEASLEY. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, St. Clair County; Maurice V. Joyce, Judge.
Action by Mathew Slovinski against Herman Beasley, doing business as the B. and D. Transportation Company, to recover for injuries sustained by the plaintiff when defendant's truck collided with a truck which the plaintiff was driving. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed. Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
Louis Beasley and Edward C. Zulley, both of East St. Louis, for appellee.
This is an appeal from a judgment of the Circuit Court of St. Clair County, in the sum of $2,400, recovered in that court by Mathew Slovinski, appellee (hereinafter designated as plaintiff), against Herman Beasley, doing business as B. and D. Transportation Company, appellant (hereinafter designated as defendant), for personal injuries sustained by plaintiff, growing out of the alleged negligence of defendant, on the 8th day of May, 1941.
At about 6:30 o'clock on the morning of the above date, plaintiff was driving his one ton truck in a westerly direction on the outside of north lane of U. S. Highway 40, a four lane highway, near the Village of Fairmont City, in St. Clair County, when defendant's 21,000 pound transport truck, operated by one of his employees ran into and struck the plaintiff's vehicle from the rear. The force of the impact threw plaintiff forward and his back was injured.
Negligence charged in the complaint was a failure to have the motor vehicle under proper control; careless and improper driving; that the truck was not equipped with brakes adequate to control the movement and stop and hold such vehicle, in violation of the Motor Vehicle Law, Ill.Rev.St.1941, c. 95 1/2, § 1 et seq.; the driving of the vehicle without having speed of same under control; that defendant's driver was fatigued and had fallen asleep while driving, and driving at a rate of speed greater than was reasonable and proper, in violation of the Motor Vehicle Law, which resulted in the collision and resultant injuries to plaintiff. Defendant's answer denied these allegations. Trial by jury resulted in a verdict of $2,400 for plaintiff, and motion for new trial being denied, judgment by the court, in the aforesaid amount.
It is urged that the trial court erred in overruling defendant's motion for new trial. Plaintiff testified that while he was driving his truck on the outside lane of the four lane highway, defendant's transport truck ran into and struck plaintiff's truck from the rear, without notice or warning of any kind and that defendant's driver admitted to him that he was asleep. Another witness for plaintiff testified that the driver admitted to him that he was asleep at the time of the accident, and that the brakes on his truck were defective.
Elra Dennis, defendant's driver denied admitting that he was asleep, and that his brakes were defective, that what he said was, that they were not the best. He stated on the witness stand that the brakes were worn and old, having had a lot of use, all of which he knew at the time of the accident. He stated that he had driven all night from Chicago, except for three hours sleep at Atlanta, Illinois; that he was following plaintiff's truck, and plaintiff acted as if he were turning left. Dennis claimed he started to go around to the right side of plaintiff, and as he did, plaintiff turned back and he hit him. Witness did not claim that plaintiff had made any signal of his intention to turn left into the inner lane. He further testified that he was three or four feet behind plaintiff's truck, when he applied his brakes, and after his truck collided with the one in front, he had no brakes at all, and his truck proceeded for 800 feet before it stopped of its own accord. In general, application for a new trial is addressed to the judicial discretion of the trial court. Adamsen v. Magnelia, 280 Ill.App. 418. There are many things that a trial judge observes on a trial that do not appear from the printed record--the appearance of a witness, his or her manner of testifying, and other circumstances that greatly aid the trial court in determining the credibility of a witness and the weight, if any, that should be attached to his or her testimony. Gavin v. Keter, 278 Ill.App. 308. Upon a careful consideration of this record, we do not believe the discretion vested in the trial court was abused, in the denial of the motion for a new trial.
Among the errors relied upon for reversal, it is assigned that the trial court erred in refusing to direct a verdict for defendant and against the plaintiff at the close of all the evidence. This is not argued, and will be deemed to be waived. Murgic v. Fort Dearborn Casualty Underwriters, 245 Ill.App. 361;Starr v. Rossin, 302 Ill.App. 325, 23 N.E.2d 740;Trust Co. v. Iroquois Auto Underwriters, 285 Ill.App. 317, 2 N.E.2d 338.
It is alleged that the court erred in permitting the doctor to testify over objection as to what he assumed was wrong with plaintiff, said assumption being alleged to be based on plaintiff's history and what plaintiff told him. It is also urged that error was committed in the giving of plaintiff's instruction number three, which pertained to damages. It is not assigned as error that the damages...
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