Walsh v. Murray

• Decision Date: 03 September 1942
• Docket Number: Gen. No. 9776.
• Parties: WALSH ET AL. v. MURRAY ET AL.
• Court: United States Appellate Court of Illinois

315 Ill.App. 664

43 N.E.2d 562

WALSH ET AL.

v.MURRAY ET AL.

Gen. No. 9776.

Appellate Court of Illinois, Second District.

Sept. 3, 1942.

Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Action by Raymond Walsh, administrator of the estate of Johanna Walsh, deceased, and by Genevieve Swenson, administratrix of the estate of Mary Lorraine Swenson, deceased, against Kenneth F. Murray and Glen Ritt, to recover damages for death of plaintiff's intestate resulting from an automobile accident. From a judgment on a general verdict for plaintiff Genevieve Swenson, administratrix, against both defendants, the defendant Glen Ritt appeals.

Affirmed.

Hall & Hulse, of Waukegan, for appellant.

Diver & Carey, of Waukegan, for appellee.

HUFFMAN, Presiding Justice.

This action arises out of a collision between two automobiles. The deceased, Mary Lorraine Swenson, had spent part of her Christmas vacation with her grandmother, Johanna Walsh. On the day in question, the deceased, a child of twelve years, was riding home in a car then being driven by Kenneth F. Murray, her uncle. Riding in the Murray car, at the time, were Murray, the driver; Glen Blackburn; Gertrude Billings; Murray's wife, Bernadine; her mother; Johanna Walsh, grandmother of the deceased; and the child. The cars collided at an intersection of two paved highways. Murray was driving his car south on highway 54. Appellant Ritt was driving his car east on highway 62, which was protected against the traffic from highway 54 by the usual and ordinary stop signs.

In the collision, Mary Lorraine Swenson was killed. Her mother, Genevieve Swenson, brings this suit against Murray and appellant Ritt. Trial by jury resulted in a verdict in favor of appellee-plaintiff, and against both defendants, in the sum of $5,000. By special interrogatory submitted, the jury found defendant Murray guilty of willful and wanton misconduct. He prosecutes no appeal. Defendant Ritt brings this appeal from judgment on the verdict, and argues two grounds for reversal; first, that the court admitted improper evidence on behalf of appellee with respect to the testimony of two deputy sheriffs concerning the speed of an automobile about one-half mile from the scene of the accident, which was of the same color as appellant's car; and second, that Murray at the time, was acting as custodian of plaintiff's intestate, and his negligence, by law, is imputable to the parent. The deceased left no brother or sister.

Glen Blackburn was riding in the front seat by the side of Murray. The deceased was riding in the back seat with her grandmother, and others. It was a clear, cold day in January. The highway was free of ice and snow. Blackburn is the only witness in the case who saw the accident. He states the Murray car was travelling about fifty miles an hour; that as it came into the intersection, he heard Murray exclaim; that it was but the fraction of a second thereafter until the collision occurred. This witness states he saw appellant's car as it approached the intersection; that it did not change its course; that it was travelling at a speed of seventy to eighty miles per hour, and struck the Murray car about the center of the body. The windows of the Murray car were frosted over, and apparently the occupants of the car, other than Murray and Blackburn, did not see appellant's car. The collision threw Blackburn clear of the Murray car, but it did not appear to stun or bewilder him. He immediately went to the Murray car to assist in removing the occupants. He says that the officers arrived almost instantly after the accident; that by the time he had gotten up from the pavement, they were there; and that no car passed the intersection between the time of the collision and the arrival...