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Westis v. Aughinbaugh

FEBRUARY 17, 1955.

CHARLES WESTIS, PLAINTIFF-APPELLEE,

v.

BARNETT AUGHINBAUGH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake county; the Hon. BERNARD M. DECKER, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 17, 1955.

Charles Westis filed a suit in the circuit court of Lake county, charging that he was injured through the negligence of Barnett Aughinbaugh. The case was tried before a jury that rendered a verdict in favor of the plaintiff for $8,750. The defendant, Aughinbaugh, has perfected an appeal from that judgment to this court. He alleges that the verdict and judgment is grossly excessive, and the court erred in giving one instruction on behalf of the plaintiff and refusing to give an instruction requested by the defendant.

Charles Westis was employed at the O.W. Lehmann Estate Farm, caring for the horses. On September 9, 1951, he placed two bales of hay in a wheelbarrow and took them north about two blocks on state hardroad route no. 59 in Lake county. He opened the bales of hay and threw them over the fence to some horses that were in the pasture. He then started back to the barn with his wheelbarrow. After he had gone about 150 feet, a car driven by the defendant, Aughinbaugh, struck the wheelbarrow which Westis was pushing and Westis was injured. At the place where Westis put the hay over the fence for the horses, there was an intersecting road to the west at the top of a small hill. There was a caution sign, "slow" north of this intersecting road.

Westis testified that as he was going down the road towards the barn he was pushing his wheelbarrow off on the shoulder of the road and was not on the pavement. The defendant and his brother testified that he was on the paved portion of the highway. The defendant did not assign as error in the trial court, nor does he argue in this court, that the verdict of the jury is contrary to the manifest weight of the evidence, so we will have to assume that the jury properly found that the defendant was negligent, and that his negligence was the proximate cause of plaintiff's injuries, and that the plaintiff himself was in the exercise of due care and caution for his own safety.

The court gave the following instructions to the jury at the request of the defendant. "36. There was in full force and effect at the time of the occurrence in question the following statute: (Given.)

`It is the duty of any person walking along and upon improved highways to keep on the left of the paved portion or on the left shoulder thereof, and upon meeting a vehicle when walking on the said paved portion to step off to the left.' 35. There was in full force and effect at the time of the occurrence in question the following statute of the State of Illinois: (Given.)

`Every pedestrian crossing a roadway at any point other than within a marked crosswalk, or within an unmarked crosswalk, at an intersection shall yield the right-of-way to all vehicles upon the roadway.

`Notwithstanding the provisions of this section the driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.'"

At the request of the plaintiff, and over the objection of the defendant, the court gave the following instructions: "A. There was in full force and effect at the time of the occurrence in question the following statute of the State of Illinois: (Given.)

`Motor vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.' For the purpose of this Act, motor vehicles as a class shall be divided into two divisions, viz.:

`First: Those vehicles which are designed and used for the carrying of not more than seven persons.

`No person shall drive a vehicle of the first division as described in Article I of this Act, upon any public highway in this state at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.

`The fact that the speed of a vehicle is lower than the foregoing prima facie limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any ...


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