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Brown v. Boyles

SEPTEMBER 22, 1960.

GAY BROWN, AS ADMINISTRATOR OF THE ESTATE OF RUTH MILDRED BROWN, DECEASED, AND WALTER BROWN, AS ADMINISTRATOR OF THE ESTATE OF VELMA FAYE BROWN, DECEASED, PLAINTIFFS-APPELLANTS,

v.

ROY RAY BOYLES, AS ADMINISTRATOR OF THE ESTATE OF STELLA BOYLES, DECEASED, ET AL., DEFENDANTS. LELAND MCCOMBS, AND BARTLOW BROTHERS, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Adams county; the Hon. ROBERT S. HUNTER, Judge, presiding. Affirmed.

REYNOLDS, J.

This action under the Wrongful Death Act was brought by the plaintiffs as administrators of the estates of their deceased spouses for losses incurred, due to the death of their respective spouses resulting from a collision between an automobile driven by one Stella Boyles and a truck driven by one Leland McCombs, an employee of Bartlow Brothers, Inc.

The collision occurred at approximately 5:15 o'clock P.M., on Illinois State Highway No. 61, a short distance west of Big Neck, in Adams County, Illinois. Stella Boyles was driving and as passengers for hire, Ruth Mildred Brown and Velma Faye Brown were riding with her, going from their place of employment, Dennis Chicken Products Company, at Augusta, Illinois, to their homes near Mendon, Illinois. From their positions after the accident, it appears that Ruth Mildred Brown was riding in the left rear seat and Velma Faye Brown in the right rear seat. The Boyles car was traveling west and the truck driven by McCombs was traveling east on the highway, an 18 foot wide concrete slab. The visibility was in the twilight zone, half dusky, and it was snowing. The highway was snow covered and slippery. For some distance both east and west of the point of collision the highway was level and straight, so that both Mrs. Boyles and McCombs could see the other approaching. From the testimony of one witness, Jack Chinn, who was traveling behind the McCombs truck, but who did not see the actual collision, both the Boyles car and the truck had their lights on. In the collision Mrs. Boyles, the driver of the car, and Mrs. Gay Brown and Mrs. Walter Brown were killed.

Other than McCombs and the three women who were killed, no one actually saw the accident. The witness Chinn was following the McCombs truck at a distance of about one-half mile, but did not see the collision. He saw the lights of the approaching car and the rear lights of the truck. Other witnesses testified as to what they found when they arrived at the scene of the accident. Three state police officers testified as to the condition of the roads, the positions of the cars when they arrived and one testified as to what speed the truck driver McCombs said he was driving. A number of witnesses testified to the careful habits of the deceased women.

Gay Brown, as Administrator of the Estate of Ruth Mildred Brown, Deceased, and Walter Brown, as Administrator of the Estate of Velma Faye Brown, Deceased, brought suit under the Wrongful Death Act against Leland McCombs and Bartlow Brothers, Inc., his employer, and against Roy Ray Boyles, Administrator of the Estate of Stella Boyles, Deceased. Roy Ray Boyles, as administrator counterclaimed against Leland McCombs and Bartlow Brothers, Inc., for loss due to the death of Stella Boyles, Deceased. Bartlow Brothers, Inc., counterclaimed against the Estate of Stella Boyles, Deceased for damages to its truck. Prior or to the trial the plaintiffs were paid $7,000.00 each on behalf of Roy Ray Boyles, as Administrator of the Estate of Stella Boyles, Deceased. The trial was upon the claim of the plaintiffs against McCombs and Bartlow Brothers, Inc., the counterclaim of Bartlow Brothers, Inc., against the Estate of Stella Boyles, Deceased, and the counterclaim of Roy Ray Boyles, as Administrator.

The case was heard before a jury and the jury returned verdicts finding the defendants Leland McCombs and Bartlow Brothers, Inc., not guilty as to the plaintiffs and not guilty as to the counter-claimant Roy Ray Boyles, as administrator, and finding Roy Ray Boyles, administrator, not guilty as to the counterclaim of Bartlow Brothers, Inc. Judgment was entered upon the verdicts and from that judgment plaintiffs appeal to this court.

In their appeal, plaintiffs raise only one point, namely that the trial court erred in denying the plaintiffs' motion for a new trial, since the verdict of the jury was manifestly against the weight of the evidence. Since no other errors were assigned, the sole question before this court is whether the verdict was against the manifest weight of the evidence. In passing on the question raised, it will be necessary to review the testimony at the trial.

Because there were no eyewitnesses, a number of witnesses testified as to the careful habits of the deceased women. These witnesses all testified that the three women were all of careful habits, both in their home life and as drivers or riders of automobiles.

Three Illinois State Highway police officers testified that they were on duty and when they received the call they went to the scene of the accident. They testified that the roads were snow covered and slippery, and that it was hazardous for travel. When they arrived the truck was partly cross-wise the road, with the rear end projecting into the west bound lane and the front end at or near the Boyles automobile, which was on the south side of the highway. Trooper Fudala talked to McCombs and testified McCombs said he was driving forty miles an hour just before the accident. This officer found a deep cut or skid mark on the highway, beginning in the west bound lane about fifteen feet east of the point of collision, about five feet long, then cutting sharply across the road in a southerly direction, extending into the east bound lane about one and one half feet. Fudala said the mark was compatible if the driver in the west bound lane had been forced to apply the brakes. The ambulance driver, and others testified they were driving on the road and each were driving at different speeds, ranging from 20-25 to 30-35. One witness Harriet Robertson met the truck as she was driving west on Highway No. 61 and while she said she thought the truck was going faster than it should for the road conditions, she did not estimate the speed, and said that when she met it it was in its proper lane and was not swaying or swerving.

Mrs. Violet Phillips and Mrs. Eva McMann were the first to arrive at the accident scene. Mrs. Phillips was driving 30-35 miles per hour. Mrs. McMann got out and Mrs. Phillips drove to Big Neck to report the accident, then drove back.

Inez Quisenberry met the Boyles car east of Big Neck and estimated its speed at that time at 20-25 miles per hour. She testified the roads were very slick and visibility dusky.

Jack Chinn, driving behind the truck, estimated his speed at 40-45 miles per hour and testified he came over the hill and saw the truck with two vehicles between him and the truck and lights approaching from the east. He believed he was gaining on the truck. He could distinguish the two headlights of the car approaching, but did not see them swerve. He saw a flash of light off to the right, then the rear lights on the truck swerve to the southeast and then back toward him to the west.

Gene Rees, a witness for the defendants, was behind the truck driving about 35 miles per hour. He did not see the collision.

Mrs. McMann, riding with Mrs. Phillips, estimated the speed of the Phillips car at 30-35 miles per hour. She did not see the truck until they came upon it cross-wise in the road. She said no one passed them from Loraine Junction to the scene of the wreck. She said McCombs came up to their car and told them the ...


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