Appeal from the Circuit Court of Cook County; the Hon. JOHN
GUTKNECHT, Judge, presiding. Judgment reversed and cause remanded
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 1, 1968.
The plaintiff brought suit for personal injuries sustained in an automobile accident. The trial court entered summary judgment for the plaintiff against the defendant on the issue of liability. The issue of damages was tried before a jury and a verdict returned in the amount of $10,000.
The plaintiff's amended complaint alleged that while the plaintiff was stopped for a red light he was rear-ended by the defendant. The complaint set forth the following alleged acts of negligence: following too close, excessive speed for conditions, insufficient lookout, failure to equip with adequate brakes, failure to apply brakes, failure to keep the vehicle under control, failure to avoid collision, and a general allegation of negligent operation. The defendant denied all material allegations in the complaint relating to the issue of liability.
At the time of the plaintiff's motion for summary judgment, the defendant's deposition was on file. This deposition contained certain admissions of a party-opponent and admitted therein that the defendant pulled away from the curb 50 feet from the intersection where the accident occurred. At that time the plaintiff's vehicle was stopped at the intersection for a red light. The plaintiff's car was the only car stopped at the intersection and occupied the third lane of five lanes of northbound traffic. All other lanes of traffic were unoccupied. The defendant stated that he was traveling 8 to 10 mph when he first attempted to apply his brakes some 20 to 25 feet behind the plaintiff. The brakes did not work and the defendant stated his speed at the time of the impact was 8 to 10 mph.
The plaintiff then filed an affidavit swearing to the facts of the accident within his personal knowledge; that his car was rear-ended while stopped for a red light in the center lane of a highway containing two unoccupied lanes of traffic to his right and two unoccupied lanes of traffic to his left. These basic facts are not in dispute.
Based upon the foregoing, the plaintiff filed a motion for summary judgment. The defendant then filed a counteraffidavit which raised the defense of sudden mechanical failure. The basic facts within the defendant's knowledge were alleged as follows:
"That when he applied his foot to the brake pedal it went all the way to the floor and the foot brake did not slow or stop his automobile. . . . That the brakes of the 1957 Ford station wagon had been adjusted on August 3, 1960 by J.J. Wright Motor Company, 242 West 55th Street and from that date until the time of the accident said brakes had performed normally while your affiant was operating that car. The first notice your affiant had of the failure of the brakes on the 1957 Ford station wagon to properly stop and hold the automobile was when he applied them 20-25 feet behind the rear of the vehicle stopped at the traffic light at 43rd and Indiana."
At this point the defendant again reaffirmed that at that time he was only 20 to 25 feet behind the plaintiff and traveling at a speed of 8 to 10 mph.
[1-4] The rules of law with respect to summary judgment were succinctly restated in the recent case of Harp v. Gulf, M. & O.R., 66 Ill. App.2d 33, 38, 213 N.E.2d 632, 634 (5th Dist 1966):
"The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill. App.2d 96, 151 N.E.2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill. App.2d 114, 166 N.E.2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill. App.2d 412, 199 N.E.2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant's right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill. App.2d 227, 164 N.E.2d 272." . . .
The undisputed facts raise a single defense sudden mechanical failure. This is a proper defense sufficient to present a question of fact to a jury. Savage v. Blancett, 47 Ill. App.2d 355, 198 N.E.2d 120, 122, 125 (4th Dist 1964). In that case the court stated:
"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.
"The determination of cases involving latent defects and rear end collisions predominantly present questions of fact for jury resolution. Johnson v. Coey, 237 Ill. 88, 86 N.E. 678; Ferdinand v. Lindgren, 32 Ill. App.2d 133, 177 N.E.2d 10; Guelli v. Kraus, 145 So.2d 900 (Fla 1962); Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897. Such determination should not be lightly disturbed by either ...