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Smith v. Ohio Oil Co.

MARCH 5, 1956.

W.R. SMITH, PLAINTIFF-APPELLEE,

v.

OHIO OIL COMPANY, AND MAURICE M. SMEDLEY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Hamilton county; the Hon. CHARLES T. RANDOLPH, Judge, presiding. Judgment affirmed. JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 22, 1956.

Plaintiff, W.R. Smith suffered personal injuries when his truck was run into by a truck of the Ohio Oil Company, driven by its employee, Maurice M. Smedley. In a suit against these parties, plaintiff recovered a judgment on a verdict of $50,000 and the defendants have appealed.

The collision occurred about 8:30 A.M. on a clear day. Plaintiff was driving westerly on U.S. Route 460. Smedley was driving south on a gravel road in a truck with defective brakes. Upon approaching the stop sign at U.S. 460, the brakes would not hold and he ran into the rear wheels of plaintiff's truck as it was passing the side road, resulting in an upset, and injuries to plaintiff.

Defendants contend there was no evidence of negligence on the part of Smedley, it being asserted that he did not know the brakes were defective and had no reason to expect the mechanical failure which caused the collision. Also that the plaintiff was guilty of contributory negligence; that there were prejudicial errors in the court's rulings; and that the verdict was grossly excessive.

As to evidence of defendants' negligence, the driver, Smedley, was called by plaintiff as an adverse party, and the following admissions were elicited:

This truck was not customarily driven by Smedley, but he also had the duty of maintenance and repair of the company's equipment. Another employee turned the truck over to Smedley the day before the crash, with a report of "difficulty with the brakes." Smedley drove it to two garages for service, but they were too busy. He observed the brakes did not act right, the pedal went down. "At times the brakes left, the pedal went down like a leaky cylinder, seepage there." The next morning he added brake fluid, and the pedal still went down, there was no improvement in that respect. The truck was due for state inspection and he started to Carmi for that purpose, intending to stop first at a garage for brake adjustment, and the collision occurred on the way.

Driving a vehicle with defective brakes on the public ways is not only illegal, it is a serious menace to traffic, and when it is done with knowledge of the defect, it cannot be said that this is no evidence of negligence.

It is true that the witness said he had made stops using the foot brake. That may be possible even with defective brakes, provided that the approach to the intended stop is made with such diminished speed that the small residual pressure in the hydraulic brake system is adequate to make a stop before the pedal goes down and the pressure is lost. The reasonable inference from the testimony in this case is that Smedley approached the stop sign at a speed of about 15 miles per hour, possibly more.

Regardless of that, it is clear that Smedley knew the brakes were defective, there was a reasonable inference he knew the truck could not pass state inspection without this being remedied. He knew there was seepage in the lines, knew it was more serious than adding brake fluid could cure, he was on his way to a garage at the time, and certainly he knew that the vehicle was placed in his possession because the brakes were defective. The jury was justified in charging him with that knowledge, and the verdict is fully supported by competent evidence that the defendants were negligent.

The assertion of contributory negligence is based upon the plaintiff's admission that he was driving at a speed of about 45 miles per hour, possibly 45 to 50 with a truck which has a speed limit of 40 miles per hour by statute. Also that he did not slow down after seeing the defendant's truck, until he saw it pass the stop sign with no sign of stopping.

[3-5] It is correct that plaintiff was not entitled to rely entirely on the preferential status of his way, and was required to use reasonable care. It is also true that this state, unlike some others, does not accept the doctrine of comparative negligence, but holds that contributory negligence bars recovery. However, this state also holds, unlike some others, that violations of laws or ordinances can only be regarded as prima facie evidence of negligence and are not negligence per se. Miller v. Burch, 254 Ill. App. 387.

This principle has been applied many times in reference to violations of traffic regulations, to such extent that many of the decisions are in abstract form. Such violations do not constitute negligence as a matter of law, and it is error for a court by instruction to suggest that such violation is regarded in law as negligence. Rasmussen v. Wiley, 312 Ill. App. 404; Burke v. Zwick, 299 Ill. App. 558; Wallace v. Yellow Cab Co., 238 Ill. App. 283; Berg v. Michell, 196 Ill. App. 509.

Defendants cite Beidler v. Branshaw, 200 Ill. 425, and Ritgers v. City of Gillespie, 350 Ill. App. 485 to the effect that where the facts are not in dispute the court will not hesitate to enter judgment notwithstanding the verdict if it is clear that the plaintiff was guilty of contributory negligence. These cases do not involve violations of traffic regulations, they are based on actual negligence, and furnish no authority for a court to hold that a party is guilty of negligence as a matter of law by reason of some traffic violation. Under the authorities previously cited, this court must hold that the denial of motions for directed verdict and for judgment were correct.

This is not a case of a party insisting upon his right of way against a vehicle previously reaching or entering the intersection. The defendants' vehicle struck the plaintiff's toward the rear, when small braking power would have been sufficient to avert the collision, and this court finds it within the scope of the evidence that the plaintiff ...


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