Thomas v. Buchanan
| Decision Date | 03 October 1934 |
| Docket Number | No. 22314.,22314. |
| Citation | 357 Ill. 270,192 N.E. 215 |
| Parties | THOMAS v. BUCHANAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; G. Fred Rush, Judge.
Action by Cyrena Lela Thomas, administratrix of the estate of Hiram Thomas, deceased, against Ernest D. Buchanan. A judgment for plaintiff was reversed by the appellate court (272 Ill. App. 308), and plaintiff brings certiorari.
Judgment of the Appellate Court reversed, and cause remanded, with directions.
Erich E. Pacyna and Oscar M. Meusel, both of Chicago, for plaintiff in error.
McKenna, Harris & Schneider, of Chicago (James J. McKenna and Abraham W. Brussell, both of Chicago, of counsel), for defendant in error.
The plaintiff in error (hereinafter called the plaintiff) brought suit in the circuit court of Cook county against the defendant in error (hereinafter called the defendant) to recover damages for the death of the plaintiff's husband, occasioned by injuries received by him in an automobile accident. A verdict was returned in favor of the plaintiff for $4,125, on which judgment was entered. On appeal by the defendant to the Appellate Court, that court reversed the judgment without remanding the cause. The case has been brought to this court upon certiorari.
Hiram Thomas, the husband of the plaintiff, was on the night of November 30, 1931, riding in a Ford automobile owned and driven by Earl Anderson. Anderson's automobile and the automobile of the defendant collided, and thereby the plaintiff's intestate received injuries from which he died. The Appellate Court held that Anderson was the agent of the deceased, and that Anderson was guilty of contributory negligence which, by reason of the relationship of principal and agent between him and the deceased, was imputable to the deceased.
The collision happened in Niles Center, in Cook county, at the intersection of Crawford avenue, which runs north and south, and Church street, which runs east and west. The automobile in which the deceased was riding at the time of the accident was being driven east on Church street, and the automobiledriven by the defendant was moving north on Crawford avenue. In each of the streets there was a sign marked ‘Caution-Dangerous Intersection,’ located about 200 feet from the intersection of the two streets. The village of Niles Center had caused to be placed at a point 30 feet south of the south line of the intersection of Church street and Crawford avenue, in the pavement in the north-bound traffic lane, a flexible black rubber sign about 6 inches high and about 20 inches long, with word ‘Stop’ thereon in orange-colored letters about 5 inches high. About 30 feet south of the south line of the street intersection, and about 2 feet east of the east line of the pavement, there was located a stop sign, the top of which was about 7 feet above the surface of the ground. On this sign were the words, ‘Stop-State Road. ’ This sign proper was about 2 feet wide and 3 feet high. These signs were visible at night from a point at least 100 feet south of them. The east lane of Crawford avenue is 21 feet wide, the center lane, which is a parkway, is 15 feet wide, and the west lane is 21 feet wide. The paved portion of Church street is about 20 feet in which. Both pavements are of concrete. It was clear and dark on the night of the accident, and the street pavements were dry. The deceased was riding in the front seat of the Anderson car and to the right of Anderson, the driver. The evidence shows there was nothing to obstruct the view of the caution sign or either of the stop signs on Crawford avenue. The Ford automobile was struck on the right side. The defendant testified in his own behalf over the objection of the plaintiff, but no error is assigned upon the record in this court upon the ruling permitting him to testify.
The defendant testified that he was driving his Nash automobile north on Crawford avenue. There were two men, named O'Brien and Mammerow, in the car with him. The defendant stated that he had never driven along Crawford avenue before and that he did not see the caution or stop signs; that he did not know there was a street intersection at the place where the accident happened; that he did not slacken his speed at any time as he approached the street intersection, and he was running at the same rate of speed-about 30 to 35 miles per hour-at the time the collision occurred; that O'Brien, who was sitting beside him, first called his attention to the approaching Ford automobile when it was about 4 feet from him. O'Brien testified to substantially the same matters as the defendant. Mammerow did not testify. The defendant stated that Mammerow was ill. The lights on both cars were burning at and prior to the time of the collision.
Two questions are presented here for the determination of the court: (1) What was the relationship of the plaintiff's intestate to the driver of the Ford automobile? (2) Was the collision due to the contributory negligence of the driver of the Ford automobile?
The evidence showed that the deceased was employed by an electric washing machine company in repairing and selling washing machines for his employer. By reason of the nature of his work, most of his time was spent outside of his employer's place of business. On the evening in question, he, together with a coemployee, delivered a washing machine at the Anderson home and remained there to demonstrate the machine. Anderson testified, in substance, that Thomas rode in the witness' car to see a lady living in that neighborhood about buying a washing machine, but she was not at home. Thomas and Anderson were returningby way of Church street when the accident happened. On cross-examination Anderson testified that he was doing Thomas a favor in driving him to this lady's home. There is no evidence of any conversation between Thomas and Anderson with reference to any arrangement made or the circumstances under which Anderson took Thomas except as herein stated. Whether Anderson was going out for a pleasure ride and invited Thomas to accompany him, telling him he would leave him at the prospective customer's home, or whether Thomas requested Anderson to take him, does not appear from the evidence.
It was contended by the defendant in the Appellate Court, and the same contention is made in this court, that, in making the automobile trip during which the accident happened which cost the life of Thomas, Anderson was the agent of Thomas. The case was not tried upon that theory in the trial court. No instruction was submitted in that court upon the issue now raised as to whether Anderson was the agent of Thomas. By the sixth instruction the jury was instructed upon the subject of the plaintiff's intestate being a passenger in the automobile of, and as the guest of, Anderson.
The Appellate Court based its decision upon the authority of Stoutz v. Nicoson, 270 Ill. App. 28,Hepps v. Bessemer & Lake Erie Railroad Co., 284 Pa. 479, 131 A. 279, and Schofield v. Director General, 276 Pa. 508, 120 A. 449. In the Stoutz Case there was evidence that the plaintiff was riding in the automobile of another, and they were going to an ice plant for the purpose of getting ice for the plaintiff. This evidence was excluded by the court. The Appellate Court merely held that the trial court erred in...
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