Warnes v. Champaign County Seed Co.

• Decision Date: 18 February 1955
• Docket Number: Gen. No. 9988
• Citation: 5 Ill.App.2d 151,124 N.E.2d 695
• Parties: James J. WARNES, Administrator of the Estate of Mary Camille Warnes, deceased, Plaintiff-Appellee, v. CHAMPAIGN COUNTY SEED COMPANY, a Corporation, and William R. Sattler, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 695

124 N.E.2d 695

5 Ill.App.2d 151

James J. WARNES, Administrator of the Estate of Mary Camille

Warnes, deceased, Plaintiff-Appellee, v. CHAMPAIGN COUNTY SEED COMPANY, a Corporation, and William R.

Sattler, Defendants-Appellants.

Gen. No. 9988.

Appellate Court of Illinois, Third District.

Feb. 18, 1955.

Henry I. Green, Hurshal C. Tummelson, Darius E. Phebus, Urbana, Oris Barth, Urbana, of counsel, for appellants.

Arthur J. B. Showalter, Albert Tuxhorn, Champaign, for appellee.

REYNOLDS, Justice.

This case comes to this court on appeal from the Circuit Court of Champaign County. The suit grew out of a collision between a car driven by James J. Warnes and a truck belonging to the Champaign County Seed Company, a corporation and driven by one William R. Sattler, employee of the corporation. In the collision the wife of James J. Warnes was killed. He brought suit as administrator of the estate of his wife, against the driver of the truck, Sattler, and the owner and employer, Champaign County Seed Company. The case was tried before a jury and the jury returned a verdict in favor of the plaintiff for $19,000. From that judgment the defendants appeal.

The collision occurred on what is known as the Philo-Sidney road, which was a black-topped two lane highway near Urbana, Illinois. The accident occurred about 7:30 P.M. on the evening of October 15, 1952. James J. Warnes was driving and in the front seat, as a guest passenger was his wife, the plaintiff's intestate. In the rear seat were the two children of the Warnes', namely Martin Leo Warnes, then aged four years, and Diana Kay Warnes, then aged two years. Warnes was driving a Chevrolet sedan in an easterly direction at about 45 to 50 miles per hour. Warnes was meeting a car and had dimmed his lights and as he approached a lane that intersected the highway, known as the Adams Lane, a dark object showed up in front of him. His wife screamed a warning and he attempted to swerve to the left but struck the back of the truck. The right front of the Warnes car hit or collided with the left rear dual wheels of the truck. The body of the truck was high enough that it came back over the hood of the Warnes car and tore off the cab part of the car on the right side and Mrs. Warnes was instantly killed. Warnes testified that the truck kept moving after the accident and dragged his car with it. It is admitted that the truck was without lights at the time of the impact. Just how long is a question of fact, the driver of the truck claiming it was 10 or 15 seconds; that the lights had gone out when he turned them up to high beam and that he immediately applied his brakes and turned to the right off the road; that it was like being in a well, dark, and he was not sure whether or not he got on the shoulder. The testimony of the driver of the truck is corroborated in part by a Mr. Lafenhager, the driver of the car coming from the west. He saw the lights on the truck go out and he also estimates that it was about 10 to 20 seconds from the time he saw the lights on the truck go out until the collision. There were two reflectors on the back of the truck, on the tail gate. Whether or not the reflectors were clean and would show the reflection of the lights of the Warnes car, does not appear to have been shown. Warnes testified that there did not seem to be any color to the mass in front of him. The lights on the truck were not working properly. The driver, Sattler had been warned by a fellow employee that the lights were not in good order. This testimony is corroborated by the Coroner of Champaign County, Mr. Wikoff and by a State Highway Policeman. There is some testimony that Sattler tested the lights at the farm of Oscar Krumm. At that time they were apparently all right. The State Highway Policeman, Carl Ray, testified that the mud flap on the left rear of the truck had been sheared off by the collision, but that he saw where the tail light had been before the accident and that the mud flap would have shut off the view of the tail light from the rear. This officer also testified that the driver William Sattler, told him that the regular driver had warned him about the lights not being in good working condition. The officer tested the light system and stated that the lights would go on part of the time but most of the time they would not; that if he hit the high beam switch, they would go out every time.

The evidence of the officer Carl Ray, as to the mud flap was disputed by the manager of the defendant corporation, who testified that he had had the light put behind the flap before the accident.

It is not clear whether the truck was off the highway at the time of the collision or not. The driver testified that he was not sure; that if he had hit the soft shoulder before slowing down, he might have turned over. After the collision, it is certain, from the testimony that the two vehicles, locked together, came to rest on the right side, partly on the shoulder and partly on their right hand lane of the highway.

The first point raised by the defendants, is that the jury did not know and was not advised as to what the issues in the case were. In support of this contention, the defendants cite a number of cases that in general state the law as to the giving of instructions but this court is unable, from the cases cited and the brief submitted, to determine just what the defendants are complaining of.

The primal object in pleading is to produce an issue affirmed on one side and denied on the other and the trial is had to determine the issue thus made. It is equally true that the object of instructions is to clearly inform the jury in a concise and comprehensive manner, what the issues are, the principles of law to be observed and the facts material to be proved to justify their verdict. This court also agrees that instructions to the jury should be predicated on the evidence and confined to the issues of the case, as cited in Illinois Central Railroad Co. v. Sanders, 166 Ill. 270, 46 N.E. 799. It is also true that relief should not be granted were not pleaded, but that the pleader must stand or fall with the case made by the pleading. All this being admitted, it is difficult to follow the contention of the defendants that the jury did not know and was not advised as to what the issues of the case were. The brief of the defendants does not point out what instructions were tendered for the defendants and refused, if any. Plaintiff's instructions Nos. 2 and 3 are mentioned but the defendants' brief says that there is no particular criticism of these two instructions, other than the way they operated in the light of the other instructions and the evidence in the case. The defendant-appellant complains of the following instruction which was given on behalf of the appellee: 'The court instructs the jury that at the time of the collision in question there was in full force and effect a statute of the State of Illinois [Ill.Rev.St.1953, ch. 70, § 1 et seq.] providing that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, and in every action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person, not exceeding the sum of $20,000. You are further instructed that this same statute gives the same rights to a surviving husband and next of kin as it does to a surviving wife and next of kin.' As was stated in Deming v....