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Peithman v. Beals

DECEMBER 9, 1968.

WINONA PEITHMAN, PLAINTIFF-APPELLANT,

v.

MAX E. BEALS AND O'NEIL BROS. CONSTRUCTION CO., A CO-PARTNERSHIP, AND HAROLD O'NEIL AND E.J. LABOUBE, CO-PARTNERS DOING BUSINESS AS O'NEIL BROS. CONSTRUCTION CO., DEFENDANTS, THOMAS H. BREHM, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding. Affirmed.

TRAPP, P.J.

Plaintiff appeals from a summary judgment entered in favor of the defendant, Thomas Brehm.

The issue was determined below upon the complaint and the facts disclosed in the discovery deposition of Brehm. Plaintiff, Winona Peithman, was a passenger in an automobile which had been stopped at a construction barricade on Route 10, west of Champaign, Illinois. Brehm, travelling in the same direction, had stopped one or two car lengths behind plaintiff's automobile. His car had its lights, including taillights, burning. While the two cars were standing for something less than a minute, one Beals approached the scene driving a truck in the same direction. He struck the defendant's automobile and pushed it into the plaintiff's automobile. The pavement was wet and muddy.

Defendant stated that he saw the truck approaching in his rearview mirror and realized the truck would not be able to stop. He took his foot off his brake a split second before the impact to "cushion" the shock and reapplied the brake immediately. When defendant released his brake his car may have moved half a car length closer to plaintiff's car. However described, defendant's action provided Beal's truck five or ten feet more in which to stop. Brehm's car was possibly one and one-half car lengths behind plaintiff's car when struck by the truck and was pushed into plaintiff's car. Plaintiff's car may have moved the distance of a foot upon impact. There was very little damage to the rear of plaintiff's car. Defendant's car took most of the shock.

Plaintiff contends that defendant's act in momentarily releasing his brake to cushion the shock was an intentional act which contributed to cause the collision between defendant's car and plaintiff's car, and the intentional act was therefore one of the proximate causes of the injury to the plaintiff.

As to Brehm, the complaint charges negligence in that he (a) negligently stopped his vehicle so close behind the car in which plaintiff was riding that it created a condition hazardous to plaintiff's safety and, (b) negligently failed to keep the brakes of his vehicle ". . . firmly applied in such a manner that said vehicle could not be driven into and against the vehicle in which the plaintiff was riding."

As to the first allegation, there are neither facts alleged nor authority cited which suggest that there is a violation of any duty in stopping, in a traffic holding situation, one or two car lengths behind, or distant from, a standing automobile.

The second allegation undertakes to make Brehm an insurer of the safety of plaintiff despite the absence of allegations of any facts showing a duty to have his brakes applied at all, as might be the case if there were facts alleged which disclosed that he was stopped upon a hill or grade. An issue created is whether or not Brehm was under any duty to completely intercept a danger to plaintiff, or insulate her from the negligent acts of another.

Plaintiff asserts that the defendant was guilty of negligence in releasing his brakes and cites in support thereof, Barlow v. Verrill, 88 N.H. 25, 183 A 857; Peavey v. Mutual Realty Corp., 82 Cal.App. 542, 255 P. 858; Kirsch v. J.G. Riga & Sons, Inc., 264 Mass. 233, 162 N.E. 355; Fuller v. Magatti, 231 Mich. 213, 203 N.W. 868; and McGregor v. Reid, Murdock & Co., 178 Ill. 464, 53 NE 323. The first four cases concern the results of leaving a car parked on a hill to the injury of a person. In the present case it cannot be said that in the absence of set brakes the vehicle operated by the defendant would move on its own to the likely injury or damage of anyone. The fifth case concerned a falling elevator where the building owner failed to have certain automatic safety devices, designed to stop an elevator in case of cable break, properly inspected. In all of these cases there was a positive duty to have brakes applied or the safety devices operative, for the reason that the instrumentality causing the injury would otherwise move on its own to the likely injury or damage of someone. In the cases cited the force of gravity was one of the forces the brakes or safety devices were designed to offset, and in each case the likelihood of harm in the event of failure to use the devices was clearly foreseeable. Therefore, the failure to set the brakes or keep the devices in order could be categorized as negligence.

We are cited no authority which would make it a standard of ordinary care for all cars in a line to have brakes set so that the rear cars in a line would perhaps absorb a shock and prevent a force from being transmitted farther down a line of cars than was absolutely necessary under optimum management of those in the rear for the benefit of those in the front.

Plaintiff next asserts that defendant made a choice in the placement of harm to his own advantage, and to the disadvantage of plaintiff. He cites the following statement of Restatement of The Law, Torts, 2nd, § 73:

"The intentional infliction upon another of substantial bodily harm, or of a confinement involving substantial pecuniary loss, for the purpose of protecting the actor from a threat of harm or confinement not caused by the conduct of the other, is not privileged when the harm threatened to the actor is not disproportionately greater than the harm to the other."

This section is not relevant to a cause of action founded upon a theory of negligence. The quoted section is a part of chapter 4, Topic I of the Restatement relating to self-defense. The "Scope Note" states that this topic deals with that form of privilege to inflict what amounts to a "battery," were it not for the fact that the act is under the protection of the privilege stated. Such proposition is demonstrated in illustrations of the party A throwing an infant from the sled to gain time as against the pursuing wolves; or again, the party B grabbing party C to serve as a shield from the pistol shooting A.

The Restatement of The Law, Torts, 2nd Ed, chapter 2, distinguishes battery as a tort from negligence in that battery involves "acts which were intended to invade some interest of personality." Again section 14 of such chapter 2 states that injury must be caused by an act done by the person whose liability is in question. As an illustration of this proposition, if party A pushes party B against party C so that C is injured, party A is subject to liability but not party B. To like effect see Harper & James, The Law of Torts, 1956, chapter 3, § 3.3, p 215. This test ...


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