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Genck v. Mcgeath

FEBRUARY 23, 1956.

H.E. GENCK, AND AUGUST ZOUTTE, PARTNERS DOING BUSINESS AS YOUNG'S WASHER SERVICE, AND RUSSELL LOWE, PLAINTIFFS-APPELLEES,

v.

JAMES G. MCGEATH ET AL., DEFENDANTS. GRACE L. LUM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon county; the Hon. DeWITT S. CROW, Judge, presiding. Reversed and remanded.

JUDGE REYNOLDS DELIVERED THE OPINION OF THE COURT.

Plaintiff Russell Lowe, was a driver for Young's Washer Service. Plaintiffs H.E. Genck and August Zoutte were partners doing business as Young's Washer Service, in the City of Springfield, Illinois. Defendant Grace L. Lum was driving one of the vehicles involved in a collision and the defendant James R. McGeath was the owner of the vehicle driven by Grace L. Lum. The case arose out of a collision between a truck belonging to the Young's Washer Service, driven by plaintiff Russell Lowe, and a car driven by defendant Grace L. Lum, at the intersection of South Glenwood Avenue, with Highland Avenue, in Sangamon County. South Glenwood Avenue runs in a general northerly and southerly direction and Highland Avenue runs in a general easterly and westerly direction. The driver of the truck, Russell Lowe was proceeding in a northerly direction on South Glenwood Avenue, and the defendant Grace L. Lum was proceeding in an easterly direction on Highland Avenue. The two vehicles collided in the intersection of the two streets or roads.

Suit was brought by the plaintiffs for damages to the truck and personal injuries to Russell Lowe, in the Circuit Court of Sangamon County. Trial was had before a jury. Five witnesses testified in behalf of the plaintiffs, namely the plaintiff driver of the truck, Russell Lowe, the two partners H.E. Genck and August Zoutte, Charles P. Forgas, a garageman, and Sergeant Joseph G. Sanders, of the Illinois State Highway Police. The defendants offered no testimony. At the close of the plaintiff's evidence, the court allowed a motion by the defendants to instruct the jury to find the defendant James R. McGeath "Not Guilty" and did so instruct the jury. At the close of all the evidence, both the plaintiffs and the defendant Grace L. Lum moved for an instruction for a directed verdict. The court denied the motion of the defendant Grace L. Lum but allowed the motion of the plaintiffs and instructed the jury to find the issues in favor of the plaintiffs Genck and Zoutte, and assess their damages at $700.29 and in favor of the plaintiff Russell Lowe and assess his damages at $15. Judgment for the plaintiffs and against the defendant Grace L. Lum was entered for those amounts, and from that judgment the defendant Grace L. Lum appeals to this court.

The appeal is made on two grounds: A. That the court erred in directing a verdict for the plaintiffs. B. That the court erred in denying the defendant's motion for a new trial. If the court erred in directing a verdict for the plaintiff, it would necessarily follow that the court erred in refusing to allow the motion for a new trial. However, two other points are raised on the ground that the court erred in denying the motion for a new trial. The defendant contends that the court erred in admitting in evidence over the defendant's objection, Plaintiff's Exhibit 1, and that the evidence was not competent to sustain the amount of the verdict. This court is bound by the record and the record shows that Plaintiff's Exhibit 1 was admitted without objection in the final minutes of the trial. Even though the defendant disputes the record, this court will have to consider the record true and correct.

This leaves only the one point for this court to pass on, namely, Did the court err in directing a verdict for the plaintiffs? In order to properly pass on this question it is necessary to examine the evidence for the plaintiff. In doing so, only the testimony of two of the witnesses for the plaintiff should be considered, namely Russell Lowe and Sergeant Sanders of the Illinois State Police. There were other witnesses but their testimony was mainly to the extent of the damage to the truck. Mr. Zoutte did testify that he talked to the defendant Grace L. Lum shortly after the accident, but his testimony in that regard has no bearing on the question before this court.

The driver Russell Lowe testified he was driving at a speed of about 20-25 miles per hour, proceeding in a northerly direction on South Glenwood Avenue, as he approached and entered the Highland Avenue intersection and as follows:

Q. Did you look in either direction prior to approaching the intersection?

A. Yes, I did.

Q. Will you describe if you can — you recall the general nature of that intersection?

A. Yes, I do.

Q. Will you describe it for the jury?

A. It would be called a suburban intersection; there are houses on all four corners; on the southwest approaching the intersection there is about three — four large trees, along the sidewalk area; and outside of that I imagine it is just like any other intersection.

Q. That is the southwest corner?

A. That is the southwest corner.

Q. Now, did you say you looked prior to going into the intersection; that you looked to either side?

A. That is right.

Q. Did you see anyone?

A. No.

Q. Any approaching vehicle?

A. When I approached the intersection I didn't see nothing.

Q. When was the first time that you realized that there was another vehicle in or approaching that intersection?

A. When I was at least half way into the intersection was the first time I saw the other car.

Q. How did you happen to see it then?

A. I heard a horn; I believe it was hers, and I happened to glance over my left shoulder and saw her in the back of me, and when I did I saw she was going to hit me so I stepped on the gas trying to get away, but there was loose gravel on the road and I couldn't get enough traction.

On cross examination, the plaintiff Russell Lowe testified as to the condition of the roadway on which he was driving as follows:

Q. What was the condition of the surface of Glenwood?

A. There was gravel on the road; I guess they just oiled ...


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