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Hawbaker v. Danner

November 3, 1955

REX HAWBAKER, AS ADMINISTRATOR WITH THE WILL ANNEXED OF THE ESTATE OF STANLEY EDWARD FINNEGAN, DECEASED, ET AL., PLAINTIFF-APPELLEE,
v.
LINDA DANNER, DEFENDANT-APPELLANT.



Author: Platt

Before MAJOR and FINNEGAN, Circuit Judges, and PLATT, District Judge.

PLATT, District Judge.

Plaintiff, Rex Hawbaker as Administrator of the Estate of Stanley Edward Finnegan, Patricia Givens Finnegan and Marion Patricia Finnegan, and as next friend of Stanley Garrett Finnegan, brought this action to recover for wrongful death,*fn1 and for personal injuries sustained by Stanley Garrett Finnegan against Linda Danner, James Brock, and Valley Distributing Company, an Illinois Corporation. The district court directed a verdict in favor of James Brock, and the jury returned a verdict against Linda Danner only, awarding $15,000.00 damages in the estate of Stanley Edward Finnegan and $10,000.00 in the estate of Patricia Givens Finnegan. The defendant, Linda Danner, filed a motion for new trial and for judgment notwithstanding the verdict. The motion was denied. She appeals only to obtain a new trial.

Linda Danner maintains that the district court erred in denying her motion for new trial for the following reasons:

1. The court improperly allowed testimony relating to the habits and due care of Stanley Edward Finnegan and Patricia Givens Finnegan.

2. The court erred in admitting in evidence the social security records stating the yearly earnings of Stanley Edward Finnegan and Patricia Givens Finnegan.

3. The court refused to give the following suggested instructions:

"You are charged that if you believe that the deaths and injuries complained of, if any, were the result of causes or circumstances over which the defendant, Linda Danner, had no control and could not prevent, then you should find her not guilty.

"You are charged that it is not every accident which makes an operator of an automobile liable for damages for an injury. If the accident is unavoidable so far as the operator of an automobile is concerned, then no liability is incurred by him, whether as a result of it a person is lightly or seriously injured, or killed, and if in this case you believe from all of the evidence and under the instructions of this court that so far as the defendant, Linda Danner, is concerned the injuries and deaths complained of were unavoidable, then you should find her not guilty."

The facts in this case disclose that a motor vehicle collision occurred about 3:45 p.m., March 7, 1953, on U.S. Route 66, on Lake Springfield Bridge, south of Springfield, Illinois. This bridge was paved, 1800 feet in length, with two lanes for north bound traffic and two lanes for south bound traffic. The visibility was good but the surface of the bridge was covered with snow, ice, slush, water, and as a result was slippery. The defendant, Linda Danner, was driving her Ford automobile in a southerly direction, and with her were three other young ladies. As the Danner automobile approached the bridge it was followed by an automobile driven by Robert L. Allen, and riding with him was his wife Billie. Just before the defendant drove upon the bridge the Allen automobile was passed by the Valley Distributing Company's truck, which was being driven by George Friar, and riding with him was Ben Joslow. Linda Danner drove in the outer or westerly lane until she reached a point 100 to 200 feet onto the bridge, when she turned her car into the inner south bound lane. In doing so she encountered slush, her car skidded, and she lost control. Her car crossed into the north bound lanes and collided with a Pontiac automobile driven by James Brock. Her automobile continued skidding until it came to a halt against the east sidewalk of the bridge. Immediately following this collision, a Nash Station Wagon headed north and driven by Stanley Edward Finnegan, in which his wife Patricia, daughter Marion, and son Garrett were riding, crossed into the east south bound lane and collided with the Valley Distributing Company's truck. All of the occupants of the Finnegan vehicle except Garrett died as a result of injuries received in the collision. Patricia Finnegan died immediately but Stanley was taken to the hospital and lived two days.Billie Allen, a witness for the plaintiff, testified that just about the same instant that the Danner automobile hit the bridge rail she looked in front of her and saw the Nash or Finnegan vehicle collide with the truck. She did not see the Nash prior to the impact, nor did she know the speed of the Nash, or when it came into the south bound lane.

Over the objections of the defendant, the plaintiff was permitted to introduce into evidence the careful driving habits of the deceased Stanley Edward Finnegan, and the careful habits of Patricia Givens Finnegan. The defendant offered George Friar and Ben Joslow as eyewitnesses, but the plaintiff refused to accept them. George Friar testified for the defendant:

"Q. And, did you see a car coming north that was afterwards in collision with your truck?

"A. Well, oh, 35 or 40 feet, I seen one coming north, northwest."

On cross examination this witness admitted testifying before a coroner's inquest on March 12, 1953, that he saw the Nash automobile "a split second" before ...


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