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Hitt v. Langel

MARCH 29, 1968.

HELEN HITT, ADMINISTRATRIX OF THE ESTATE OF NORMAN M. HITT, DECEASED, AND ROGERS CARTAGE COMPANY, A CORPORATION, PLAINTIFFS-APPELLANTS,

v.

DELMAR B. LANGEL, ADMINISTRATOR OF THE ESTATE OF ERNEST C. LANGEL, DECEASED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding. Judgment affirmed.

EBERSPACHER, P.J.

This is an appeal from a judgment for the defendant in an action for wrongful death and property damages.

The action was brought by Helen Hitt, the administratrix of the estate of Norman M. Hitt, deceased, and Rogers Cartage Company, a corporation. The cause of action was based upon a collision wherein the plaintiff's decedent driving a gasoline tanker truck owned by Rogers Cartage Company was involved in a collision with an automobile driven by Ernest C. Langel. As a result of the collision both the plaintiff's decedent and Ernest C. Langel were killed. Delmar B. Langel, the administrator of the estate of Ernest C. Langel, deceased, was named as the party defendant.

The collision occurred on December 30, 1964, at approximately 4:30 p.m. Norman Hitt was driving his truck in a northerly direction on Route 66 near Hamel, Madison County, Illinois. It was a clear day and the highway was dry. At this particular point Route 66 consists of two northbound lanes and two southbound lanes with a median strip dividing them.

From the evidence it appears that a man and wife by the name of Pattingale driving a 1956 Chevrolet automobile in the northbound lane had developed mechanical trouble and had parked their automobile on the shoulder to the right of the northbound lanes. The Pattingales had emerged from their automobile. Shortly thereafter a new Chrysler automobile driven by Ernest Langel also driving in a northerly direction with his wife as a passenger approached the Pattingale automobile. The Langels stopped their automobile in the right-hand lane about 100 to 200 yards in front of the place where the Pattingale car was parked in an apparent effort to render aid to the Pattingales. Moments later James Lamble, a witness, traveling north on Route 66, approached the scene from the south. He observed the Pattingale automobile, the Pattingales a short distance in front of their automobile walking north and the Langel automobile sitting in the right lane, at a slight angle. As the witness Lamble passed the Langel Chrysler, it appeared to be backing toward the shoulder very slowly. Mr. Lamble testified that immediately after passing the Langel car he pulled back into the right-hand lane and looked into his rearview mirror and observed a truck colliding with the Langel car and burst into flames.

There was about one-half mile of straight highway to the south of the place where the Pattingales parked their automobile. The highway gradually inclines and reaches a crest approximately 1,100 feet beyond the Pattingale automobile.

The Pattingales testified that after they parked their car on the shoulder they got out of their car and were walking north on the shoulder. They testified they saw the Langel car stop abruptly about 100 to 200 yards in front of their car and witnessed its movements prior to the collision. They testified that as the Langel car came to a halt the engine died. It was restarted and backed up 20 to 30 feet, then pulled forward 25 feet and was backing up again very slowly in the center of the outside lane at the time of the collision. They further testified that the truck did not appear to either slow or swerve either right or left prior to the collision. It appears that the Pattingales had walked about 70 feet between the time that the Langels stopped the car and the collision occurred.

Mr. Pattingale testified that as the truck passed him he saw a station wagon in the lane next to the truck also going north and that the front of the station wagon and that of the truck were pretty much in line. Mrs. Pattingale and Mr. Lamble testified that they did not see the station wagon.

There was also evidence that the plaintiff's decedent had gone on duty between 4:00 and 5:00 a.m. that morning.

Upon this evidence the jury rendered a general verdict for the defendant and against both the plaintiff Hitt for the wrongful death and the plaintiff corporation for the loss of its truck. The court entered judgment on the verdict from which both plaintiffs appeal.

In support of the plaintiffs' effort to reverse the judgment, the plaintiffs allege that the court erred in failing to withdraw the issue of the defendant's negligence from the jury, that the verdict was against the manifest weight of the evidence, that the jury was improperly instructed, and that the court abused its discretion in not allowing a new trial due to the improper instruction.

Turning first to the specific allegations of error, the plaintiffs allege that two of the defendant's instructions were erroneously given, that one of the plaintiffs' instructions was erroneously refused and that the court erred in giving the jury a general form of verdict.

The first instruction which the plaintiffs find objectionable is Defendant's Instruction No. 7. The instruction is IPI No. 60.01, which provides:

"There was in force in the State of Illinois at the time of the occurrence in question a certain ...


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