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Mcclean v. Chicago G.w. Ry. Co.





Appeal by plaintiff from the Superior Court of Cook county; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Heard in the third division of this court for the first district at the December term, 1953. Judgment reversed and cause remanded. Opinion filed July 2, 1954. Rehearing denied July 30, 1954. Released for publication September 14, 1954.


Rehearing denied July 30, 1954.

This is a personal injury action based on the alleged negligence of defendant's servant. Special and general verdicts and judgment were for defendant. Plaintiff has appealed and defendant has assigned cross-error.

Plaintiff was injured on August 13, 1949, about 7:00 p.m., when defendant's truck, in which plaintiff was a passenger, overturned on U.S. Highway 71 near Savannah, Missouri. The truck was being driven by Victor Coble, who was killed instantly. Both men were residents of Iowa, and employees of defendant engaged in work north of Savannah. Coble was driving to Savannah, where he had decided to spend the week end. Plaintiff had met Coble after work at about 5:00 p.m. at Conception Junction, about 26 miles north of Savannah, and with Keun, another employee, had dinner with Coble. Later another employee, Subbert, joined them. Coble was to drive the other three to Savannah where they would board a bus enroute to St. Joseph, Missouri, their destination for a union meeting the next day. Plaintiff had been given a railroad pass to St. Joseph and used it on the return trip.

The issues made by the pleadings were whether (a) Coble, at the time, was or was not within the scope of his employment; and (b) whether plaintiff's injuries were suffered in a "mere accident." The jury in special verdicts found that Coble was not "acting within the course and scope of his employment" and that the "occurrence" was a "mere accident which happened without the negligence of anyone."

Plaintiff contends the trial court committed reversible error in instructing the jury and in submitting a special interrogatory; in refusing to instruct that Coble was acting within the scope of his employment as a matter of law; and in failing to grant a new trial for "prejudicial misconduct" of defendant's attorney. Defendant assigns as cross-error the refusal of the court to direct a verdict for defendant at the close of all the evidence.

We think that the giving of four peremptory instructions in the twenty-two instructions for defendant was not itself prejudicial error. In Chism v. Decatur Newspapers, Inc., 340 Ill. App. 42, six of twenty-one defendant instructions were peremptory, but this was but one of several factors in concluding the instructions were prejudicially erroneous. The court there stated that the jury should be told only once about each proposition of law. Each of defendant's four peremptory instructions in the instant case contained a separate proposition of law and we think did not unduly repeat the term "not guilty."

The court gave the following instruction for defendant:

"If you believe from the evidence under the instructions of the Court, that the rate of speed at which defendant's automobile was being operated at the time and place of the accident was under the circumstances in evidence of the case not inconsistent with the exercise of ordinary care on the part of defendant, then no negligence can be chargeable to the defendant, in the operation of the automobile on the ground of the speed at which it was running.

Moreover, you cannot find the defendant guilty in regard to the speed at which the automobile was being operated, unless you find from the preponderance of the evidence, under the instructions of the Court, that the speed at which said automobile was being operated, was a proximate cause of the accident in question."

That instruction is misleading because it emphasizes the factor of negligent speed to the virtual exclusion of other negligence factors provable under the general negligence charge. West Chicago St. Ry. Co. v. Petters, 196 Ill. 298. The attempted qualifications of this emphasis are not clear enough to offset the vice. The instruction might lead the jury to find defendant not guilty if they decided Coble's speed was not negligent, even though they considered his conduct at the time otherwise negligent. The defendant's instructions indicate that speed was not the only negligence factor in the case, since they speak of the requirements of care in "sudden emergency" and of Act of God. The inference from them is that there was some question in the case of Coble's conduct in driving off the road and on again and of his reaching to the floor while driving. The instruction under consideration was peremptory and was erroneously given.

We think too that the instruction on sudden emergency is erroneous. There was no testimony of any "sudden emergency" arising from "imminent peril" because of the approach of a police car from the opposite direction on the highway. There was no testimony received in evidence and in the record of any peril from the police car nor testimony justifying an inference of peril. The police car was "about a half mile" away and was on the proper side of the road. It is error to give an instruction not based on evidence. Magill v. George, 347 Ill. App. 6.

It is our opinion also that the court erred in giving the jury the interrogatory whether Coble, at the time of the occurrence, was acting within the scope of his employment.

The testimony was not controverted that Coble, in his employment, was subject to call for emergency duty at all times; that he was paid a monthly salary and expenses for board and lodging; that his domicile was in Oelwein, Iowa; that the night in question he was driving to Savannah to spend the week end with his wife and daughter who had come from Oelwein for a visit and to bring his laundry; that he was required to leave a "tie-up order" before going to Savannah so defendant could reach him; that he was provided with a truck ...

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