Appeal from Circuit Court of St. Clair county; the Hon. W.G.
JUERGENS, Judge, presiding. Affirmed in part and reversed in part
PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
This is an action by two plaintiffs, one in a representative capacity for wrongful death, and one, a minor by next friend for damages for personal injuries incurred in an automobile-truck collision.
On August 12, 1954, in daylight, Carl Lindhorst was driving a 1940 Dodge in a southwardly direction along Highway No. 3 just north of Columbia, Illinois. Riding as guests with him were three other teen agers, DeWayne Davis, Michael Mernick and Stanley Hudson. Proceeding in the opposite direction going northwardly were three passenger cars, the lead car being driven by defendant, Ambrose Chiodini. Following these three cars was a two ton truck loaded with 6 tons, or 600 watermelons, and driven by defendant Paul Miller, with whom defendant Hartsil Russell was riding. It is alleged by plaintiffs that at a point near a side road leading to the east called Woodland Lane, defendant Chiodini suddenly applied his brakes, giving no signal other than the flashing of his brake lights; that the sudden application of brakes caused the other passenger cars following to do the same in turn; that the truck driver likewise was caused to apply his brakes and, in doing so, swerved over the center line of the highway; that a collision between the Lindhorst car and the truck thereupon occurred resulting in the deaths of Carl Lindhorst and Michael Mernick and injuries to DeWayne Davis and Stanley Hudson.
The complaint joined as defendants, Paul Miller, alleging negligence in the operation of his truck; Ambrose Chiodini, driver of the lead car, alleging that his sudden application of his brakes was a proximate or contributing cause of the collision; Ragon Russell and Hartsil Russell on the theory they owned the watermelons and were liable on the principle of respondeat superior; and the Administratrix of the Estate of Carl Lindhorst, alleging wilful and wanton negligence of the deceased.
Of these five defendants, Hartsil Russell was voluntarily dismissed by plaintiffs during the course of the trial; not guilty verdicts were returned at the direction of the court in favor of Ragon Russell and Ambrose Chiodini at the close of plaintiffs' evidence; the jury returned a verdict of not guilty as to Helen Lindhorst, Administratrix of the Estate of Carl Lindhorst, and found Paul Miller guilty and assessed damages of plaintiff DeWayne Davis at $40,000 and damages of plaintiff Adam Mernick, Administrator of the Estate of Michael Mernick at $10,000. The judgments entered on the guilty verdicts are not appealed from, nor has a cross appeal been filed by defendant Paul Miller.
Plaintiffs contend that the trial court was in error in directing not guilty verdicts in favor of Ragon Russell and Ambrose Chiodini on the basis that plaintiffs' evidence made out a prima facie case against both said defendants, and the question of their liability should have been submitted to the jury.
As to defendant Helen Lindhorst, Administratrix of the Estate of Carl Lindhorst, plaintiffs contend that the trial court committed error in applying Section 2 of the Evidence Act so as to exclude from the jury's consideration all evidence given by her co-defendants as to her liability.
Considering first the contentions relative to defendant Chiodini, we must start with the proposition that a verdict shall not be directed if there is any evidence which, taken with its intendments most favorable to plaintiff, tends to prove the complaint. Seeds v. Chicago Transit Authority, 409 Ill. 566.
Confining our consideration of the evidence in the light of this rule and as applied solely to defendant Chiodini, we find from the testimony of defendant Chiodini himself, testifying under Sec. 60 of the Practice Act [Ill. Rev. Stats. 1955, ch. 110, § 60], that he was driving about 50 m.p.h. along said highway looking for a particular subdivision. As he approached Woodland Lane, the entrance to the subdivision, a guest in his car called his attention to it. He immediately applied his brakes, but was unable to slow down enough to turn into the drive. He then released his brakes and applied them again. He did not see the Lindhorst car approaching him, and did not know how close the car immediately behind him was.
Mr. Hollis, driver of the car immediately behind Chiodini, stated he was travelling 40 or 50 m.p.h. about 50 or 60 feet behind Chiodini; that Chiodini applied his brakes suddenly a hard brake application; that he in turn had to lay on his brakes pretty hard; that he received no signal from Chiodini other than his brake lights; that Chiodini slowed down very fast to 20 m.p.h.; that both right wheels left the highway before he, Chiodini, "straightened up" and applied the brakes again, slowing down to 5 m.p.h. Hollis was within 12 or 15 feet of Chiodini at this point and it was then he heard the collision. He estimated that the Lindhorst car was going about 50 m.p.h. when it passed by him, with two wheels on the shoulder of the road. He was not sure, but he thought he saw the truck coming from behind about 500 to 600 feet back.
Mrs. Hollis, riding with her husband, stated that she noticed Chiodini's brake lights go on all of a sudden and he eased his wheels off the pavement on the right side. He released his brakes for just a minute and then they went back on. She estimated the speed of her car and Chiodini's at about 40 m.p.h. She stated that he slowed down first to 20 m.p.h., then to 4 or 5, at which time her car came within 6 or 7 feet of Chiodini's. She stated that the Lindhorst car was travelling straight up the highway going about 40 to 50 m.p.h.
Stanley Hudson, riding with Carl Lindhorst, stated they were going 40 to 50 m.p.h., and had two wheels off the pavement on the shoulder. Also, that he saw the truck 2 feet over the center line.
Hartsil Russell, passenger in the truck, stated they were going 35 or 45 m.p.h. about 75 to 100 feet from the last of the three passenger cars; that he saw the tail lights on the cars ahead go on, and they were stopping awful fast; that the driver of the truck put on his brakes, edged the truck over the center line 1 or 1 1/2 feet, then pulled back in his own lane, at which time he was about 75 feet from said cars. He saw the Lindhorst car off on the shoulder going 70 m.p.h. and sloped over; that the next thing "he hit us" when the truck was 25 feet from last car. The truck was going 15 or 20 m.p.h. at impact.
Two policemen testified that the truck and car in question were both in the southbound lane after the collision and that they were unable to ...