Truemper v. Bowman, No. 72--224

• Court: United States Appellate Court of Illinois
• Writing for the Court: SEIDENFELD
• Citation: 307 N.E.2d 735,17 Ill.App.3d 677
• Docket Number: No. 72--224
• Decision Date: 21 February 1974
• Parties: Henry F. TRUEMPER and Beatrice V. Truemper, Plaintiffs-Appellants, v. Jimmy C. BOWMAN, Defendant-Appellee.

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307 N.E.2d 735 17 Ill.App.3d 677 Henry F. TRUEMPER and Beatrice V. Truemper, Plaintiffs-Appellants,
v.
Jimmy C. BOWMAN, Defendant-Appellee. No. 72--224. Appellate Court of Illinois, Second District. Feb. 21, 1974.

[17 Ill.App.3d 678]

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William E. Ray, Jr., Jurco & Collins, Chicago, for plaintiffs-appellants.

Kirkland, Brady, McQueen, Martin & Callahan, John P. Callahan, Elgin, for defendant-appellee.

SEIDENFELD, Justice.

Plaintiffs, Henry F. Truemper and Beatrice V. Truemper, sued for injuries allegedly suffered when their automobile was struck in the rear while stopped at a traffic light by a vehicle driven by the defendant, Jimmy C. Bowman. Plaintiffs appeal from the judgment entered on the verdict of the jury finding defendant not guilty of negligence and from the order denying their post-trial motions.

Plaintiffs contend that the verdict of the jury was against the manifest weight of the evidence; and that various trial errors

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and an improper instruction to the jury deprived them of a fair trial.

The collision occurred on the afternoon of Jury 18, 1969. There were no unusual weather conditions and the pavement was dry. Plaintiffs' car had stopped facing east behind 4 or 5 cars at a red light at the intersection of Galena Street and Edgelawn in Aurora.

Defendant testified that he had turned out of the driveway of a medical clinic and headed east on Galena. He saw the plaintiffs' car when he was 120 to 125 feet behind it. He was going 20 miles per hour when he first saw the brake light of the Truemper car go on. He took his foot off the accelerator and started applying the brake pedal. However, the engine continued to speed up, so that the vehicle kept going at approximately 20 miles per hour although defendant kept his foot on the brake pedal until the collision.

After the collision when the police arrived defendant moved the car and again the engine speeded up. He opened the hood and found a loose cable midway between the carburetor and the fire wall of the car, which he said caused the return spring on the accelerator to lose its tension. Defendant testified that when he tightened the loose cable the car operated properly. He said that the problem had never occurred prior to the accident.

Plaintiffs' principal contention is that the verdict was against the manifest weight of the evidence. Plaintiffs argue that while sudden mechanical failure is ordinarily a question of fact for the jury (Watkins v. Lewis (1968), 96 Ill.App.2d 182, 186, 237 N.E.2d 830), the defense was not here supported by convicing evidence that the accident happened solely from the alleged defect.

[17 Ill.App.3d 679] Plaintiffs urge that the defendant's claim of sudden mechanical failure due to a latent defect in the equipment of the car does not become a factual question for the jury unless the proof of the defense excludes any reasonable hypothesis that the accident happened from a cause other than the alleged defect. They argue in this regard that there is no proof of sudden mechanical failure of the brakes; and that it is a reasonable hypothesis that the accident was caused by inadequate brakes rather than the alleged defect in the accelerator. They argue that the conclusion is inescapable from the record that defendant's braking power failed to meet legal standards which require that brakes be adequate to stop a vehicle traveling 20 miles per hour on dry pavement within a distance of 30 feet. (Ill.Rev.Stat.1969, ch. 95 1/2, par. 211(b)(1).) Plaintiffs cite Savage v. Blancett (1964), 47 Ill.App.2d 355, 362, 198 N.E.2d 120, as authority for the conclusion that defendant failed to meet its burden of proof to establish the defense of sudden mechanical failure.

In Savage v. Blancett, however, reversible error was predicated on the court's failure to give a tendered instruction detailing the elements required to prove a latent defect in the car's brakes, coupled with failure to state statutory duties in regard to the performance of braking equipment. (See Martin v. Kralis Poultry Co. (1973), 12 Ill.App.3d 453, 464, 297 N.E.2d 610.) Blancett is authority for the rule that a party is entitled to have the jury instructed on a theory of the case which is supported by the evidence. (Trowbridge v. C. & I.M. Ry. Co. (1970), 131 Ill.App.2d 707, 709, 263 N.E.2d 619; Heiser v. Chastain (1972), 6 Ill.App.3d 552, 556, 285 N.E.2d 601.) However, Blancett is not helpful to plaintiffs under the circumstances of this case.

[1,2] Here, an instruction was given as to the statutory duty with reference to brakes, but no instruction was tendered as to the legal issues involved in the doctrine of sudden failure due to the brakes or the latent defect in the accelerator equipment as to which the defendant specifically testified. As in McKinsey v. Morrissey (1973), 12 Ill.App.3d 156, 157--158, 299 N.E.2d 533, the parties were content to permit

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the jury to consider the evidence without instruction as to the defense of latent defect in determining whether defendant was negligent; and plaintiffs may not now rely on this assignment of error. The jury could judge the credibility...