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Petersen v. Midwest Trans. Co.

OPINION FILED MAY 31, 1951

LOIS JANE PETERSEN, ADMINISTRATRIX OF ESTATE OF CLARENCE ROBERT PETERSEN, DECEASED, PLAINTIFF-APPELLANT,

v.

MIDWEST TRANSFER COMPANY OF ILLINOIS AND FLOYD JOHNSON, DEFENDANTS-APPELLEES.



Appeal by plaintiff from the Circuit Court of McLean county; the Hon. WILLIAM C. RADLIFF, Judge, presiding. Heard in this court at the May term, 1951. Reversed and remanded. Opinion filed May 31, 1951. Rehearing denied September 4, 1951. Released for publication September 4, 1951.

MR. JUSTICE DADY DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 4, 1951

Plaintiff, as administratrix of the estate of Clarence Robert Petersen, deceased, brought this action under the Wrongful Death Act (Ch. 70 R.S.) against Midwest Transfer Company of Illinois and Floyd Johnson. The circuit court entered judgment against the plaintiff on a jury verdict finding the defendant not guilty.

Plaintiff brings this appeal from such judgment.

On the night of July 27-28, 1948, about nine p.m., the decedent, Clarence Robert Petersen, accompanied by Therlow Marshall was driving southerly on Route 51 a small truck owned by Marshall. The defendant Floyd Johnson, as agent of the other defendant, was then driving northerly on the same route a tractor-trailer truck owned by such other defendant. A collision then occurred between the two trucks which resulted in the deaths of Petersen and Marshall.

There was no competent eyewitness to the collision.

So far as is now material, the complaint charged that defendants negligently drove the tractor-trailer truck on the west side of the road and that as a direct result of such negligence the two vehicles collided, causing the death of Petersen. The answer of defendants denied all charges of negligence.

The first contention of plaintiff is that the trial court erred in refusing to permit plaintiff in her case in chief to prove statements made under oath by defendant Johnson at a coroner's inquest held on the death of decedent.

The trial court, on objection of defendants, refused to permit a court reporter (who reported the testimony of Johnson at the inquest) to testify to anything Johnson testified to at such inquest, — solely because Johnson was present in court at the time of the trial in the present proceeding and could then be called to testify by the plaintiff.

Thereupon in the absence of the jury the plaintiff offered to prove that the following questions were asked of Johnson at the inquest and that he made the following answers to such questions:

"Q You were traveling north on Route 51?

"A Yes, sir.

"Q Where did this collision occur?

"A About five miles south of Bloomington on 51.

"Q You say they went on the shoulder, ...


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