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Ziegler v. Smith

AUGUST 22, 1967.

LENA L. ZIEGLER, AS ADMINISTRATOR OF THE ESTATE OF DONALD E. ZIEGLER, AND LENA L. ZIEGLER, INDIVIDUALLY, APPELLANT,

v.

LUCILLE M. SMITH, APPELLEE.



Appeal from the Circuit Court of the Sixteenth Judicial Circuit of DeKalb County; the Hon. CASSIUS POST, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is an action brought by Lena L. Ziegler, individually and as Administrator of the Estate of Donald E. Ziegler, deceased (her husband), seeking damages for his wrongful death and for funeral expenses. The jury returned a verdict for the defendant, Lucille M. Smith. The trial court entered judgment on the verdict and the plaintiff appealed.

The plaintiff contends that a certain remark made by defense counsel in his closing argument and two instructions given on behalf of the defendant, constitute reversible error.

The decedent, Donald E. Ziegler, was struck and killed on December 3, 1965, while carrying hay off the highway. Some bales of hay previously had fallen from his pickup truck onto the westbound traffic lane of Perry Road, a well-traveled blacktop road. Ziegler turned his truck around, drove back to where the hay had fallen and parked his truck partially on and partially off the south side of the road, preparatory to picking up the hay.

Arthur Stiegleiter, a witness to the accident, was driving in the westbound lane of Perry Road between the time when the hay fell off the truck and when the decedent had returned to pick it up. Stiegleiter's daughter was in the car with him. He did not see the bales of hay on the road in time to avoid hitting them and struck one bale which was in the center of the westbound lane.

There was an incline in the road from the east to the spot where the bales had fallen; then there was a slight leveling off toward the crest of the incline; and a decline as the road continued westerly. The road was marked to indicate a no-passing zone for the westbound traffic as it approached the spot in question. Stiegleiter testified that he didn't see the hay until his headlight beams dropped down over the crest of the hill; and that he didn't pull out into the eastbound lane of traffic since he couldn't see whether any eastbound cars might be coming up the hill. When he hit the bale of hay, it loosened or broke and hay flew over the road. Stiegleiter drove onto the next crossroad, examined his car, and then returned to the scene to remove the remaining bales of hay from the road.

The decedent was already there when Stiegleiter returned to the scene. Stiegleiter parked his car behind the decedent's pickup truck. Both vehicles were on the south or eastbound side of the road, mostly on the shoulder, with their headlights on, facing the oncoming westbound traffic. It was approximately 5:15 p.m., and it was dark.

The defendant then approached the scene, driving an Oldsmobile car in a westerly direction, at approximately forty to fifty miles per hour. Her headlights were on. She testified that she saw the two stopped vehicles and two people standing next to the Stiegleiter car, but at no time did she see anyone in her lane of traffic; that she was about even with the two vehicles when she heard a thud on the right side of her vehicle; and that she later learned she had hit the decedent.

Stiegleiter testified that the decedent, at the time, was picking up hay in the westbound lane; that he (Stiegleiter) first saw the defendant's approaching headlights when they were about fifty to seventy-five feet away; that he yelled to the decedent to watch out; and that the decedent — who had his arms full of hay and had started toward the truck — then looked in the direction of the approaching car and started for the north side of the road but was struck before he got off the westbound lane of traffic.

In the course of the closing arguments, plaintiff's counsel said: "Obviously, if she struck somebody they are going to be killed. That's just what happened." Defense counsel, in reply, referred to plaintiff's argument and said: "Now, taking Mr. Puckett's argument, you would say or you might say that Mrs. Smith is a killer." We agree with the plaintiff that this argument was improper, and that the trial court should have sustained the objection thereto. The word "killer" has a sinister connotation and could prejudice a jury. However, the question remains whether or not this impropriety was sufficiently prejudicial to warrant a reversal. We will consider that question along with the errors alleged regarding the instructions.

The plaintiff claims that the following instruction, given at defendant's request, was erroneous:

"There was in force in the State of Illinois at the time of the occurrence in question a certain Statute which provided that: No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway.

"No person shall operate on any highway any vehicle with any load unless said load and any covering thereon is securely fastened so as to prevent said covering or load from becoming loose, detached, or in any manner a hazard to other users of the highway. If you decide that a party violated this Statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence."

The plaintiff contends that there was no evidence that the decedent's truck was loaded in a manner violative of the statute. Stiegleiter testified, however, that the decedent told him it was his (the decedent's) hay. We believe that such statement and the other factual circumstances of record, offer a sufficient basis to permit the jury to infer that the bales of hay fell off the decedent's truck which was loaded in such a manner as to permit part of its load to fall upon the highway. We cannot say that the ...


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