*1 cn o.. authority grant injunctive relief the court
supra, sustain judgment In circuit court opinion instant case. our in the js right Fitzsimmons, OG., is affirmed. Westhues and concur. and it foregoing opinion PER :(cid:127) —The is adopted Cooley, CURIAM C., All judges opinion of the court. concur. Delivery Company, Appellant. v. Berberich Clarence Loveless (2d) S. 73 W. 790. Two, July 9, Division 1934. Jones, Hooker, Angert appellant. <& Sullivan *2 Murry N. Edwards Robert A. respondent. Harris for *3 reassigned' at the the writer to has been ease C.—This COOLEY, grow injuries damages personal for for an action term. It is
present
653 ing Highway No.'13, out of an automobile collision on State in-Illinois. brought The suit Louis, City Circuit' Court of the of St. judgment against plaintiff $10,000 where had Berber- defendant ieh, which Originally from appealed. latter was'another there defendant, Publishing Company, the Pulitzer- but at 'the close plaintiff evidence The disniissed to defendant. as signments urged appeal predicated upon of error on are in this two given delating' for plaintiff; structions one t6 the statutory:duty an right automobile driver to turn to the 'center the road upon meeting relating vehicle, another the other to violation of' regulation. statutory speed raised pleadings No is n plaintiff did not make a submissible CaSe. a;- At July the time of the which collision, occurred about'1:30 m. model-Ford, 11, 1927, automobile, going west on Highway 13, employee said Feldscher, No: one Berberich, delivery defendant the latter’s truck east. delivering His newspapers business to-dealers-in a number part towns in that of Illinois. The with paved an eighteen-foot pavement haVing- running length- a black concrete line through middle, straight thé--place wise where the and was that was a collision occurred. -Plaintiff’s evidence"tended show ' - moonlight night; magneto lights equipped that his car Was although dimly; burning, that he-first defend- were discovered truck, running headlights, ant’s without hun- when it was about two “crowding him; dred feet from the truck was the black line” when seventy-five when it him he saw it and was about feet from first coming whereupon across “cut noticed it over the black line he-at once *4 brakes,'“and right steering apply his his wheel” to and started to his north, by (time) I was hit.” He testified he that that was to the (his black line all and -that of right) the at times at the moment of line; wheels were about three feet north of said collision his left regain the collision and hot he unconscious did that was rendered hospital.' in a some time later Other witnesses consciousness until testified very after accident as to the location soon the who arrived Plaintiff’s not been moved. witnesses testified cars, which had of the demolished, practically lying which was on the Ford, 'was' that the concrete, highway of the and- north the the of dirt shoulder right diagonally across pavement, side the its lying on its truck was or- five and four feet' north of the the northeast front toward end pavement. Defendant’s witnesses the testified line of middle black two of and a half the truck about two feet of was front end that the only partially pave- Ford was off the line, and said north of being side, pavement. still one end of on the north ment on the truck, defendant; testified, a witness for Feldscher, driver car; plaintiff Was without plaintiff’s not see did lights; just collision, when,, before the as he thought, he must been have within plaintiff, lights or fifteen feet of of his twelve truck, having with- which trouble, he had been some went out and he “pushed coasting gas in” his and to a shut off and was clutch quote testimony stop, when he hit car. We as his his position pavement: relative to middle of
“Q., were.you Where abouts in the road at the time of this acci- dent, with reference A. time Well, side of the road? my lights right side, I I went out. over to the far over get. could “Q. you position your At the collision did note the time
. is, wrong Well, get over, car? A. I didn’t have time to on side,. my steering straight. I I know that: wheel about had . “Q. steering straight? sir; your Yes, You had wheel A. about gotten I couldn’t the black line:” and have over giving .Appellant’s first contention is that the court erred I. reading 1,No. as follows: plaintiff’s Instruction place jury at the time when and instructs .the “The court came collision in the evidence into mentioned where the automobiles other, imposed upon the driver of the law each vehicle, highway, public meeting on vehicle another motor when right seasonably the same to the operating such motor vehicle to turn highway pass as to without the beaten track said so center of interference. from the evidence that the,jury if find and believe route.No. “And mentioned, place was at the and -in the evidence
13 mentioned time find that the Illinois and further State of highway in public -the while automobile truck of said Berberich’s driver defendant imme- time of and at the said- the same on operating' .and negli- collision, into .came said automobiles diately before automobile truck to the seasonably defendant’s turn gently failed t.o pass highway so as to track of said beaten right of center -the riding interference, without plaintiff in which automobile part defendant, negligence on the such-failure, any, if then: evi- believe from the find and driver; if the Berberich-’s specified, above consequence of such a direct that as dence injured, plaintiff the time and at in. any, plaintiff if. you safety,,. will find for then ordinary own care for exercise ’’ - [William defendant, Berberieh. against the *5 evidence, by plain- in and introduced pleaded statute,: The Illinois reads tiff “Whenever, pub- vehicle meet on a motor operating shall persou or riding a horse other draft or person any other lic motor ve- operating such vehicle, person the so any other animal, or vehides, hide or riding or animal, horse or draft other shall each seasonably right turn the to of the. center of the beaten track such highway of pass so toas without interference.”
Appellant’s contention is that the erroneous instruction is because it assumes appellant’s north, truck.driver was on the his is left, side of the roadway immediately collision, negli- before and the gently failed seasonably right to argues: to the of center. He turn the right “He could not turn it to the side of the beaten‘track it unless on left necessarily the side thereof and this that he was assumes on Otherwise, the left side. if he right was on the side of the beaten already, required track then the instruction him to turn to further right getting the even to highway, necessary off if the to avoid a col- wrong car, lision with the Ford if it even was on Appel- the side.” goes lant’s dearly contention far. too The instruction does as- not sume that the truck seasonably driver failed right to turn to the but requires expressly jury so may subject the to find. The instruction be ground technically on may to criticism the be said assume to truck the the driver on left of the center roadwa^ collision, otherwise, the appellant before because argues, could right agree not have turned to the the center line. ¥e cannot argument appellant’s further that under the the truck instruction required right though, driver was to turn still further even to the prior collision, only the he was his own. the road. to on side of It re- right quired, language statute, in the to the he turn pass plaintiff’s center of the beaten so to car track without required jury that,plaintiff It interference. also to find was at ordinary in the care He was not exer- time exercise himself. violating by driving cising ordinary if care he' was the statute on the the, wrong pro- side of the road. The instruction stated correctly actionable visions of defined the statute required language find substantially to we The statute the word think its statute. uses “turn.’’..But meaning going in passing op- when simply clear is a vehicle proper be on his side posite a motor vehicle driver must direction obeys turning. Of already If there he the statute without road. guidance lay- juries composed of are for the course instructions clearly by to be them. must be written so as understandable men and thought opinion mind, we with this are of the However, not have been misunderstood could instruction duty keep driver’s jury. that it the truck clearly It means meeting roadway pass- when side of the center of propér juror reasonably ear. think no could have under- ing We required to turn defendant’s driver to the the instruction stood that roadway already, there, if he or to center of right .violating was himself latter verdict for the if authorize.a *6 656 by
the law and the wrong of the road on the side defendant’s in referred to obeying driver statute was it where the and said, may be instruction the the instruction drive. "While should be respect and would technically pointed above' out erroneous in the requirement the specific if a a better instruction it contained the jury of the center of find that the truck driver was on the left considering whole, a and that, the road are instruction we satisfied evidence, was not jury in the understood it and that it view of so non-prej- frequently We held that misleading prejudicial. have ground for reversal. error is not udicial II. Instruction Appellant charges giving plaintiff’s in of error 2, reading: No. the State of jury instructs laws of “The court that-under evidence, it in at the time of the collision of automobiles pulling made unlawful for driver a motor vehicle used
was of freight carrying gross weight five thousand having and and a of including and maximum pounds weight and of the vehicle less, load, tires, operate to drive and equipped pneumatic with same and speed of in ex- highways at a rate the State of Illinois public on the of twenty-five (25) per .therefore instructed cess of miles hour. are You you the defendant’s find and believe from the evidence that that.if in was such a motor vehicle automobile-truck mentioned the evidence you and if further find that at the time and before as above described being driven and run it collided with automobile it agent, charge in there- defendant, William Berberich’s and driver at rate upon public within the state of Illinois in- twenty-five (25) hour, you are speed per in excess miles then (25’) running twenty-five per in miles excess of structed such hour, any, you if and believe .negligence; if and find injured consequence any, plaintiff if negligence, direct such evidence, plaintiff was in the as mentioned in the time and. you ordinary safety, then will find for exercise care for own against defendant, and William Berberich.” statute, pleaded The Illinois introduced evidence . in- by plaintiff, speed limits the trucks such as described wheels, twenty- struction, pneumatic with tires or cushion equipped per provides and further if such are hour-, five trucks miles speed rubber not with or more solid tires the shall equipped two twenty.miles speed, therefore, per maximum allowed hour. The exceed weight twenty-five gross per named is miles hour. any truck of given erroneously instruction was because: Appellant asserts gross weight, truck in- evidence was of a (a) There was no 5000 load, pounds cluding equipped or less and maximum (b) it tires; operated told the that if it was pneumatic twenty-five operation negligence, an in excess of miles hour such prima makes evidence whereas the statute ottered évidence facie thirty-five operate such vehicle in excess of miles *7 per hour. contention,
(b) (b), first is Disposing appellant’s second he A applicable part as to the statute statute. mistaken thirty-five speed per make' in introduced does a excess miles hour running prima the'operator speed evidence is a facie that at rate only greater'than provision is or proper, applies reasonable but that class, viz., passenger to vehicles certain vehicles which —“Those designed carrying per are and used of not more than seven only apply It to sons:” does not trucks. The statute of Illinois rela speed pleaded in tive to the of trucks that was or ottered evidénce was limiting speed twenty-five above referred to their to miles one municipal regulating an Violation of a or hour. ordinance statute speed highways trains or of motor vehicles on is S. W. 515, 96 Ry. Co., 509, Schlereth v. Mo. Pac. 10 per se. Mo. [See 66; Co., 246, 161 Mo. Ry. 635; Hutchinson v. Mo. Pac. 61 S. W. 253, (Mo. 297 App.), Benzel Anishanzlin S. W. v. 180.] (a) agree ¥e appellant cannot there no evidence with question capacity that the truck in was of character described Berberich, in deposi the statute offered in evidence. Defendant in a by plaintiff, tion and introduced in taken testified truck “three-quarter question delivery truck, awas ton” with wire “a regular body truck,” open, that newspaper on a is without a screen Berberich, though testify cab, present, did not at the trial. in front. witness, Cooney, Defendant’s testified on cross-examination- ‘£ light hauling passenger truck but a truck used for truck was not freight.” truck, Cooney A photograph of the identified witness gives being representation, a correct evidence. It introduced truck, character and shows that of the size and indication an testimony pneumatic tires. Feldscher’s on cross- with equipped it was papers he delivered newspaper route as to examination light. Among actually, carried was other the load showed “any get can’t time we we he testified that through circumstances Defendant, papers to our on.” get a taxicab take did supposed to are weight capacity or truck. any as to the evidence not offer three-quarter truck as a ton Berberich, describing the Whether weight pounds 1500 or that such was own truck, meant that its shown, carry, we think facts designed to it the load therefrom, finding authorized a to' be deduced inferences reasonable 5000 including load, did not exceed weight, maximum gross that its only load, 1500 its pounds order to weighed make If it pounds. pounds, 5000 would to 3500 weight have exceed exceed gross “light freight.” If, probably as Berberich not that is pounds,—and meant, designed carry it hardly 1500 pounds, to a load of it is likely weighed pounds. above, over 3500 Moreover, as stated .it photograph, saw, gives which the some size and idea of its character. against appellant. We rule this contention
Appellant not seem does to contend that there was not sufficient finding support speed driver’s evidence truck twenty-five time of per the collision miles exceeded hour. We think was, urged such but since contention is not is needless ther.e tending out discuss to set the evidence so to show. judgment of the circuit court affirmed. Fitz- The is Westimes and simmons, CC., concur.
PER CURIAM: —The foregoing opinion by Cooley, C., adopted is the court. All -judges opinion concur. *8 Crain, Administratrix of the Estate Crain, Ida B. Frank v. Illi (2d) W. Appellant. 786. Company, nois S.—73 Central Railroad Two, July 9, 1934. Division