Appeal from the Circuit Court of Montgomery County; the Hon.
DANIEL H. DAILEY, Judge, presiding. Reversed and remanded for new
trial as to damages only.
ROETH, PRESIDING JUSTICE.
Suit was brought by Fannie and Donald Betzold, husband and wife, against Paul Erickson and his mother, Lillian Erickson, for property damages and personal injuries sustained by plaintiffs in a collision between the automobile of Donald Betzold, being driven by Fannie Betzold, and a truck driven by Paul Erickson. A jury trial resulted in a verdict for defendants against plaintiffs. Plaintiffs filed a post trial motion for judgment notwithstanding the verdict and in the alternative for a new trial, which motion was denied and judgment entered accordingly. Donald Betzold was not present at the time of the occurrence, but is the owner of the automobile and therefore interested in this proceedings. Plaintiffs' post trial motion was not directed to the verdict in favor of Lillian Erickson, and no appeal was taken from the judgment in her favor, therefore Paul Erickson will be referred to here as defendant.
The complaint of Fannie Betzold charges defendant with one or more of the following acts of negligence:
"a. Drove onto left one-half of the roadway.
b. Failed to pass to the right of the plaintiff and failed to give to the plaintiff one-half of the mainly traveled portion of the highway.
c. Failed to keep a proper lookout.
d. Failed to keep the truck under control.
e. Drove at a speed that was greater than was reasonable and proper having regard to the narrowness of the road and the dusty condition and surface thereof.
f. Drove onto left one-half of the road and into the front of plaintiff's car which was stopped."
Fannie Betzold seeks damages for personal injuries and in a separate count her husband seeks damages for damage to his car, medical expenses for his wife and loss of consortium.
The record before us discloses that on August 28, 1959, defendant, then 13 years old, drove the family pickup truck, with his mother's permission, to meet a friend, Lawrence Johnson. The two boys went swimming and then proceeded home, each in their own vehicle, the Johnson boy first, followed by the defendant. They were driving west along a country road and at the time they reached the place where the collision occurred defendant was following Johnson some 100 to 150 yards to the rear of the Johnson car, traveling between 30 and 35 miles per hour. The road was of gravel and dirt construction and had recently been scraped in preparation for oiling of the surface and was quite dusty. The road was 18 feet in width, with a ditch about 18 inches deep on the north and south side. The road inclined slightly, so that as defendant proceeded in a westerly direction he was driving down a slight decline.
Fannie Betzold was driving her husband's car in an easterly direction, delivering dinner to her husband who was attending some field event in the area. As she proceeded up the road, she drove in the center of the same until the Johnson car approached when she pulled over to her right and slowed down. The Johnson car raised considerable dust, and being unable to see, she pulled over to the right as close to the ditch as possible and stopped. The Johnson car proceeded on west without in any way coming in contact with the Betzold car. Up to this point, the testimony is not contradicted, neither party to the suit could see the other and no other evidence was offered to contradict or corroborate this testimony.
Fannie Betzold then further testified that at this point she saw defendant's truck some 250 feet east of her, coming down the middle of the road. It then swayed to its left, then to the right, then back to the left, ran its left wheels into the ditch on the south side of the road, came down the ditch 30 to 40 feet and collided with her automobile. Defendant's testimony is substantially the same, except for distances. He testified that he first saw the Betzold car when the dust of the Johnson car lifted, and it was 75 to 100 feet away. He hit his brakes, swerved to the left, then the right, then back to the left into the south ditch and rode the ditch with his left wheels for about 15 feet and ran into the Betzold car. Plaintiff Fannie Betzold testified she did not move from the time she stopped when the Johnson car was passing until defendant's truck struck her, throwing her back. Defendant testified he did not watch the Betzold car continuously and could not say if it ...