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Truemper v. Bowman

FEBRUARY 21, 1974.




APPEAL from the Circuit Court of Kane County; the Hon. PAUL W. SCHNAKE, Judge, presiding.


Plaintiffs, Henry F. Truemper and Beatrice V. Truemper, sued for injuries allegedly suffered when their automobile was struck in the rear while stopped at a traffic light by a vehicle driven by the defendant, Jimmy C. Bowman. Plaintiffs appeal from the judgment entered on the verdict of the jury finding defendant not guilty of negligence and from the order denying their post-trial motions.

Plaintiffs contend that the verdict of the jury was against the manifest weight of the evidence; and that various trial errors and an improper instruction to the jury deprived them of a fair trial.

The collision occurred on the afternoon of July 18, 1969. There were no unusual weather conditions and the pavement was dry. Plaintiffs' car had stopped facing east behind four or five cars at a red light at the intersection of Galena Street and Edgelawn in Aurora.

Defendant testified that he had turned out of the driveway of a medical clinic and headed east on Galena. He saw the plaintiffs' car when he was 120 to 125 feet behind it. He was going 20 miles per hour when he first saw the brake light of the Truemper car go on. He took his foot off the accelerator and started applying the brake pedal. However, the engine continued to speed up, so that the vehicle kept going at approximately 20 miles per hour although defendant kept his foot on the brake pedal until the collision.

After the collision when the police arrived defendant moved the car and again the engine speeded up. He opened the hood and found a loose cable midway between the carburetor and the fire wall of the car, which he said caused the return spring on the accelerator to lose its tension. Defendant testified that when he tightened the loose cable the car operated properly. He said that the problem had never occurred prior to the accident.

Plaintiffs' principal contention is that the verdict was against the manifest weight of the evidence. Plaintiffs argue that while sudden mechanical failure is ordinarily a question of fact for the jury (Watkins v. Lewis (1968), 96 Ill. App.2d 182, 186), the defense was not here supported by convincing evidence that the accident happened solely from the alleged defect.

Plaintiffs urge that the defendant's claim of sudden mechanical failure due to a latent defect in the equipment of the car does not become a factual question for the jury unless the proof of the defense excludes any reasonable hypothesis that the accident happened from a cause other than the alleged defect. They argue in this regard that there is no proof of sudden mechanical failure of the brakes; and that it is a reasonable hypothesis that the accident was caused by inadequate brakes rather than the alleged defect in the accelerator. They argue that the conclusion is inescapable from the record that defendant's braking power failed to meet legal standards which require that brakes be adequate to stop a vehicle traveling 20 miles per hour on dry pavement within a distance of 30 feet. (Ill. Rev. Stat. 1969, ch. 95 1/2, par. 211(b)(1).) Plaintiffs cite Savage v. Blancett (1964), 47 Ill. App.2d 355, 362, as authority for the conclusion that defendant failed to meet its burden of proof to establish the defense of sudden mechanical failure.

In Savage v. Blancett, however, reversible error was predicated on the court's failure to give a tendered instruction detailing the elements required to prove a latent defect in the car's brakes, coupled with failure to state statutory duties in regard to the performance of braking equipment. (See Martin v. Kralis Poultry Co. (1973), 12 Ill. App.3d 453, 464.) Blancett is authority for the rule that a party is entitled to have the jury instructed on a theory of the case which is supported by the evidence. (Trowbridge v. Chicago & Illinois Midland Ry. Co. (1970), 131 Ill. App.2d 707, 709; Heiser v. Chastain (1972), 6 Ill. App.3d 552, 556.) However, Blancett is not helpful to plaintiffs under the circumstances of this case.

Here, an instruction was given as to the statutory duty with reference to brakes, but no instruction was tendered as to the legal issues involved in the doctrine of sudden failure due to the brakes or the latent defect in the accelerator equipment as to which the defendant specifically testified. As in McKinsey v. Morrissey (1973), 12 Ill. App.3d 156, 157-8, the parties were content to permit the jury to consider the evidence without instruction as to the defense of latent defect in determining whether defendant was negligent; and plaintiffs may not now rely on this assignment of error. The jury could judge the credibility of defendant's explanation and claim that he had no prior knowledge of the defect. On this evidence, it could well have concluded that even with adequate brakes defendant was not guilty of negligence because of a sudden mechanical failure involving the cable connection between the accelerator pedal and the carburetor.

• 1 The mere occurrence of an accident does not of itself raise any presumption of negligence on the part of a defendant. (Moss v. Wagner (1963), 27 Ill.2d 551, 555. See also Ferdinand v. Lindgren (1961), 32 Ill. App.2d 133, 140.) Rear-end collision cases involving the defense of latent mechanical defects predominantly present questions of fact for the jury to resolve. Savage v. Blancett (1964), 47 Ill. App.2d 355, 365. See also Watkins v. Lewis (1968), 96 Ill. App.2d 182, 186.

• 2 In light of the evidence, defendant's negligence, if any, depended on whether he approached plaintiffs' vehicle at an unreasonable rate of speed; whether he followed too closely; whether he failed to keep a proper lookout; whether he failed to have adequate brakes required by the statute; or whether the collision was caused by none of these factors but by a sudden mechanical failure with defendant having no previous knowledge of the defect. All of these were questions of fact which the jury could properly resolve. (Johnson v. Coey (1908), 237 Ill. 88, 91-92.) We therefore hold that the evidence of the latent defect in the accelerator was sufficient to establish a defense to the claim of negligence and that the jury verdict was not against the manifest weight of the evidence.

Plaintiffs also contend that the jury was erroneously instructed that defendant was negligent only if he violated a provision of the Motor Vehicle Act. Specifically, they argue that the court erred in refusing their tendered issues instruction which included the phrase that plaintiffs claim that defendant was negligent in the operation of his automobile * * * "in view of the conditions then prevailing."

• 3 We note that the court instructed the jury on the issues made by the amended pleadings which alleged that defendant was negligent in failing to keep a proper lookout and following too closely. The court used the general form set forth in I.P.I. Civil No. 20.01 (1971 ed.). The rule applicable to issues instructions is that the court should inform the jury in a clear and concise manner of the issues raised by the pleadings. This is accomplished by a summary of the ...

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