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Savage v. Blancett

APRIL 27, 1964.

DEWEY SAVAGE, PLAINTIFF-APPELLANT,

v.

NORMAN BLANCETT AND SKELLY OIL COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding. Reversed and remanded.

SMITH, J.

In this case, plaintiff sought damages for injuries resulting from the alleged negligent operation of defendants' truck in striking plaintiff's car from the rear. A jury trial resulted in a verdict for the defendants. On post-trial motion, the trial court first granted plaintiff's motion for new trial and denied his motion for judgment notwithstanding the verdict. The trial court granted defendants' motion for rehearing, vacated the order granting a new trial, denied the motion for new trial and entered judgment for the defendants on the jury verdict. From these determinations, plaintiff appeals.

Plaintiff, alone in his car, was stopped at the last car in a line of traffic on Fairview Avenue in Decatur about 125 feet north of its intersection with Eldorado Street. Defendant Blancett was driving a three-ton bulk-gas truck of the defendant Skelly Oil Company and had stopped for a red light at the Eldorado intersection. He then saw that the traffic ahead of him was stopped. When the light changed, he started in low gear, shifted to second, reached a speed of about 25 miles per hour and then hit his brakes about 20 to 25 feet from the plaintiff. When he hit the brakes, they went to the floor and his truck struck plaintiff's car in the rear propelling it into the rear of the car ahead, which, in turn, struck the car ahead of it. Blancett testified that he had tried the brakes that morning, that they were good and that they had worked up until the time of the collision. Defendants introduced evidence that Skelly drivers made monthly reports on the condition of their trucks, that safety inspections were made every six months, and that after the accident the only repair to the truck was an inch to an inch and one-half rupture in one front wheel brake hose.

It is first contended by the plaintiff that the trial court should have directed a verdict in favor of the plaintiff as a matter of law and submitted the case to the jury on the question of damages alone. Defendants filed a special defense asserting that the collision was an unavoidable accident occasioned solely by a latent defect in the brakes without prior knowledge thereof to the defendants and that such latent defect was not discoverable through reasonable inspection. Plaintiff filed no motion attacking this special defense, but instead denied the facts and denied that they constituted a defense to plaintiff's cause of action. Plaintiff's theory is that Ill Rev Stats (1963) c 95 1/2, § 211 prescribing "brake equipment required" on motor vehicles and prescribing minimum standards for "performance ability of brakes" . . . and providing that they "shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle" is a legislative determination that a total brake failure is negligence per se. To repudiate this theory, it is said, entitles the operator of a vehicle with defective brakes to one free injury to others and, even though technically without fault, is to shift the loss and injury to the absolutely innocent party.

To so hold is to repudiate the philosophy long established in this State that violations of the Motor Vehicle Act are only factors to be considered in determining negligence on the part of a motor vehicle operator and are not negligence as a matter of law, Smith v. Ohio Oil Co., 10 Ill. App.2d 67, 134 N.E.2d 526. It ignores completely the question of knowledge of such an operator of such defect and whether or not the operator acted as a reasonably prudent person in meeting his statutory obligation to maintain his brakes in good repair. In Shulman v. Chrysler Corp., 31 Ill. App.2d 168, 175 N.E.2d 590, the defendant was charged with negligence in failing to apply her brakes in time. She filed a third party complaint, against the manufacturer of the automobile for indemnification based upon the negligent manufacture of the brakes. The court held that the action would not lie, that if she failed to apply the brakes in time, she was guilty of active negligence and could not be indemnified and, that if she applied the brakes and the brakes failed, she could not be indemnified because she would not be negligent and thus not liable to the plaintiff. The Court said at page 171:

"It is equally clear from the face of the amended complaint that if . . . she was free from negligence and the accident occurred as a result of a defect in the braking mechanism of which she had no knowledge, Halligan would be unable to recover damages from her."

In McDermott v. McKeown Transportation Co., 263 Ill. App. 325, the Court in referring to the liability of the defendant, said:

"It would not be liable even if the rear light was not lit at the time of the accident if the jury believed from the evidence that such failure was occasioned without negligence on defendants' part."

To hold as the plaintiff requests is to hold as a matter of law that the owner or operator of a motor vehicle is the guarantor of the mechanical integrity of his vehicle at all times. To so hold makes him an insurer as to latent defects. To so hold is to father a liability for latent defects in automobiles foreign and wholly adverse to the philosophy of our law heretofore pursued in the field of latent defects in this and other areas. We see no compelling reasons for us to embark upon such an excursion into a hitherto unexplored legalistic stratosphere. The trial court did not err in denying plaintiff's motion for a directed verdict on the question of liability.

Plaintiff also assigns as error the admission of testimony by the automotive supervisor of Skelly Oil Company that it was the policy of that company to have visual inspection of every truck every thirty days and a monthly report to its condition by the drivers in writing. He further testified that they have a traveling inspector who inspected and drove each vehicle every six months. The local manager testified likewise and that the drivers' reports were kept in the ordinary course of business. No objection was made to this testimony and it is fundamental that there is no ruling of the trial court before us for review, People v. Trefonas, 9 Ill.2d 92, 163 N.E.2d 817.

The local manager also identified defendants' exhibits 1 and 4 — the drivers' monthly report. These reports indicated that the conditions of the brakes were good. Plaintiff objected to these exhibits on the grounds of materiality. The trial court excluded exhibit 1 and admitted exhibit 4. In our judgment no error was thus committed. Admittedly this exhibit is not admissible or material as proof of the condition of the brakes at the time of the accident. It is material in evaluating the conduct of the defendants as to their care in ascertaining the existence of the latent defect. In addition, we fail to see where it is prejudicial to the plaintiff where the undisputed testimony is that the brakes failed and the oil hose was ruptured after the accident.

Plaintiff assigns as error the giving of Defendants' Instruction No. 2 as follows:

"If you find that the brakes on the truck driven by the defendant Norman Blancett and owned by the defendant Skelly Oil Company were defective, and by reason thereof Norman Blancett was unable to stop the truck or reduce the speed in time to prevent the collision, and provided further that the defendant, Skelly Oil Company, or its employees, did not know of such defective condition of the brakes, and by the exercise of ordinary care could not have found it out, then you are instructed that the plaintiff is not entitled to recover for injuries proximately caused by reason of any such defective condition of the brakes, provided you find the defendants were not negligent in any other respect."

Plaintiff levels many criticisms at this instruction and sets them out in detail in his post-trial motion. The conference on instructions practice has now jelled to the somewhat cold, but concise statement that "Counsel must preserve the specific objections in the conference, on post-trial motion and in the record." Greenlee v. John G. Shedd Aquarium, 31 Ill. App.2d 402, 176 N.E.2d 684. They come too late when first made either in post-trial motion or on appeal. Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163; Smelcer v. Sanders, 39 Ill. App.2d 164, 188 N.E.2d 391. So limited we may consider only the complaint that, the instruction is not in I.P.I.; there is no evidence to support its giving; and it is a single issue instruction. The objection that the instruction is not in I.P.I. is without merit. Supreme Court Rule 25-1 specifically authorizes an instruction, where I.P.I. has none on the subject; that is, "simple, brief, impartial, and free from argument." Ill. Rev Stats c 110, § 101.25-1. There was ample evidence to support this instruction had it been limited to the foot brakes. The manager of the garage and his service manager where this truck was serviced, testified at length to the nature of these brakes; that five months before the accident the truck had passed the safety inspection; that each wheel and brake was tested with mechanical gauges; that very seldom will a sudden application of the brakes cause a rupture; and that they made ...


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