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Daly v. Bant

APRIL 29, 1970.

MILDRED DALY, ADMINISTRATRIX OF THE ESTATE OF DONNA C. DALY, DECEASED, PLAINTIFF-APPELLANT,

v.

JAMES H. BANT AND JOHN KONECNIK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County, Nineteenth Judicial Circuit; the Hon. WILLIAM M. CARROLL, Judge, presiding. Judgment affirmed.

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

This case presents the ever-troublesome issue of the circumstances under which the trial judge may properly determine that the evidence presents no factual question for the jury's consideration, and that the verdict should be directed.

At about 7 p.m., on July 29, 1967, Donna C. Daly, 15 years of age, was a passenger in a Ford automobile, presumably driven in a westerly direction on Three Oaks Road by William Cunningham. Their destination at the time was the New Place Teen Club on Route 31.

At the time and place in question, the defendant, James H. Bant, individually and as agent or employee of the defendant, John Konecnik, was driving a milk-truck tractor and trailer in a southerly direction on Route 31. Three Oaks Road intersects Route 31 near the crest of a hill, a short distance south of Route 14. All traffic on Three Oaks Road is required to stop before entering Route 31. The milk truck and the Ford car driven by Cunningham collided at the intersection of Three Oaks Road and Route 31. As the result of this collision, Donna C. Daly received bodily injuries which caused her death.

Mildred Daly, Administratrix of the Estate of Donna C. Daly, deceased, filed a wrongful death action against the defendants, James H. Bant and John Konecnik, wherein she alleged that Bant, individually and as agent of Konecnik, was guilty of the following acts or omissions at the time and place in question:

(a) failed to keep a proper lookout;

(b) operated the motor vehicle at an excessive rate of speed in violation of section 49 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95 1/2, par 146);

(c) failed to keep his motor vehicle under control;

(d) followed traffic ahead of his vehicle too closely in violation of subsections (a) and (b) of section 61 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95 1/2, par 158(a)(b)).

These allegations were denied in the answer filed by the defendants, as were the other material allegations of the complaint.

Occurrence witnesses, Charles T. Stark, Jr., age 16, and Thomas Kleeman, age 15, testified on behalf of the plaintiff. Stark testified on direct examination that the car which he was driving entered Route 31 from Route 14; that he was driving in a southerly direction on Route 31 at a speed of 65 m.p.h., and was destined for the New Place Teen Club; that he noticed no traffic in front of him, but was aware of a truck which followed him closely for about one-half mile to the intersection of Route 31 and Three Oaks Road; that the truck was about three feet to the rear of his car as he went through the intersection; that he saw no traffic at the intersection; and that when he was a half block past the intersection, he saw a Ford car bounce off the side of the truck at the intersection.

On cross-examination, Stark stated that as he drove up the hill approaching the intersection, the truck stayed about three feet behind his car; that his car was travelling at a speed of 65 m.p.h.; that the truck slowed down as it approached the intersection; that he did not see any cars as he passed through the intersection; and that he saw the accident occur through his rear view mirror when his car was about one-half block beyond the intersection.

Stark was then handed a statement which he had made on August 5, 1967, and he acknowledged that therein he had stated that the Cunningham car was travelling 65 m.p.h. when the accident happened; and that the truck was in the center of the intersection at the time.

Kleeman testified, on direct examination, that he was a passenger in the left rear seat of the Stark car at the time of the occurrence; that just before the collision, the traffic was clear on Route 31; that as the car in which he was riding approached the intersection, the truck was following behind it a distance of about one car length, and at the intersection, the truck was about two car lengths behind; that the speed of the car in which he was riding was from 60 to 65 m.p.h.; that he did not remember seeing any traffic on Three Oaks ...


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