{
  "id": 5242243,
  "name": "Edwin Nowak, Plaintiff-Appellee, v. Robert W. Schrimpf, Donald F. Schrimpf, d/b/a Piasa Oil Company, Defendants-Appellants, and Fred Feazel, Defendant-Appellee",
  "name_abbreviation": "Nowak v. Schrimpf",
  "decision_date": "1963-11-18",
  "docket_number": "Gen. No. 63-M-17",
  "first_page": "309",
  "last_page": "314",
  "citations": [
    {
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      "cite": "44 Ill. App. 2d 309"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "N.E.2d",
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    {
      "cite": "50 NE2d 132",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
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    {
      "cite": "320 Ill App 19",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        4979420
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      "case_paths": [
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    {
      "cite": "151 NE2d 641",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "18 Ill App2d 186",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5187479
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  "last_updated": "2023-07-14T18:55:19.466287+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "CULBERTSON, P. J. and HOFFMAN, J., concur."
    ],
    "parties": [
      "Edwin Nowak, Plaintiff-Appellee, v. Robert W. Schrimpf, Donald F. Schrimpf, d/b/a Piasa Oil Company, Defendants-Appellants, and Fred Feazel, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "SCHEINEMAN, J.\nThis is an appeal by defendants doing business as Piasa Oil Co., from a judgment of $10,000 entered on a jury verdict in favor of plaintiff against both defendants, Piasa Oil Co. and Fred Feazel. The latter defendant was named as an appellee herein but he has not appeared.\nThe case involves a three vehicle collision that occurred on February 23,1957, about 3:30 a. m., on U. S. Highway 67 between Alton and East Alton, Illinois. The highway is a concrete road, 50 feet wide, consisting of 4 lanes, two for westbound traffic and two for eastbound. The pavement was wet and it was raining lightly. The posted speed limit was 45 m. p. h.\nAccording to the plaintiff, he was driving a IV2 ton truck going west at about 35 m. p. h. in the outside, or northermost, westbound lane. Defendant Feazel, driving a Ford passenger car and also going west at about 40 or 45 m. p. h., passed plaintiff\u2019s truck, using the inside westbound lane. At this same time a petroleum tanker unit, consisting of a tractor and two tank trailers belonging to the defendants was coming from the opposite direction moving eastwardly in the eastbound portion of the highway. A collision first occurred between the Feazel car and the Piasa Oil Co. tanker after which the tanker veered over into the westbound traffic lanes and hit the plaintiff\u2019s truck.\nThe complaint charged the Piasa Oil Co. with the following acts of negligence: (a) Excessive speed.' (b) Failure to keep a proper lookout, (c) Crossing over from the eastbound lanes to the westbound lanes.' (d) Failure to have the truck equipped with proper lights, (e) Driving with obscured windshield, (f) Moving truck from one lane to another without giving a proper signal, (g) Failure to have truck under control so as to be able to stop it short of danger, and (h) in all respects driving the truck in a careless, negligent, and improper manner.\nOn motion, the court struck charges (d) and (e) on the basis that there was no evidence to support them. The same ruling would seem to have applied to the charge (a), excessive speed, since the evidence concerning the speed of defendant\u2019s truck was his own testimony that his speed was about 25 m. p. h., and the testimony of the other defendant, Feazel, that defendant\u2019s speed was 40 to 45 m. p. h. This is all the evidence there was bearing on the subject of the speed of the truck.\nThe decisive question in this case is whether plaintiff\u2019s version of the accident at the trial constitutes a judicial admission which would defeat his claim against defendant Piasa Oil Co. The following is a summary of plaintiff\u2019s testimony:\nHe said that he was driving west toward Alton in the right hand lane of the four lane highway. That when he was 75 feet or 100 feet east of a tavern on the south side of the road, he noticed Feazel\u2019s car beside him going about 40 or 45 m. p. h.; that after it passed him it turned, like it was going into the tavern premises across the road; that it gradually went over into the inner eastbound lane, then in between the two eastbound lanes, \u2014 \u201cI was watching him all the time wondering which way he was going to go next.\u201d Plaintiff also stated that he had seen the Piasa Oil Co. tanker coming east in the outermost eastbound lane, that it had its lights on, that its tires were splashing water on the south shoulder of the road, that just before the Feazel car hit the Piasa tanker the Piasa truck, \u201cwas taking off on the shoulder to the south side of the road,\u201d that after the collision the Piasa truck came across the highway and hit his truck on the left side.\nUnder further questioning the plaintiff repeated his story in substantially the same way, except that he mentioned prior to the impact the defendant\u2019s truck swerved to the left, but he added that the front part of the truck was still on the shoulder when the collision took place. He repeated that, prior to the collision, the Piasa truck had turned to the left, but he added, \u201cthat it then went to the shoulder and the collision occurred, that after the collision the truck came over and hit his truck in the westbound lanes.\u201d\nIt will be observed that the plaintiff gave no statement indicating excessive speed on the part of the truck or failure to keep a proper lookout or that it was driving with an obscured windshield. And he further directly negatived any defect about the lights, as charged in the complaint, and he negatives any turn to the left by the truck into a westbound lane, until after the collision had occurred on the shoulder of the eastbound side of the pavement.\nThe plaintiff\u2019s story was corroborated in substantial part by other witnesses. The driver of the Piasa truck also said that the car hit him as he was trying to evade it to the right, that he was hit behind his left front wheel and the impact broke his air brake lines, jammed his throttle wide open, and put his steering gear out of commission so that he shot across the road and hit plaintiff\u2019s truck, that he had no control, no brakes, no steering, while just a short time previous to the collision he had tried his air brakes and they were working.\nA witness standing at the tavern testified he saw the Feazel car come across the highway into the eastbound lanes and run into the Piasa truck. A tow truck driver and a police officer arriving on the scene found the Feazel car straddling the two eastbound lanes after the accident. Examination of the Piasa truck after the accident disclosed that the steering assembly was broken, the throttle bent and jammed open, and the brake line broken.\nThe only testimony contradicting any of this was that of Feazel who obviously tried to put the blame on the Piasa truck, asserting that it came across and hit his car when he was completely on the north side of the middle of the road.\nIt will be observed that tbe plaintiff\u2019s own testimony contradicts that of defendant Feazel in that plaintiff places the point of impact clear over to tbe farthest part of tbe eastbonnd lanes and partly on tbe shoulder, and twice be stated, \u201cAfter tbe collision tbe Piasa truck came across tbe highway.\u201d\nWe note at another point in tbe examination of tbe plaintiff be was specifically asked tbe following question: \u201cI thought just before tbe collision you said tbe truck was coming back toward the center line of tbe highway?\u201d He answered: \u201cJust before tbe collision be was in tbe center lane and then be went to tbe shoulder and right then they bad tbe collision.\u201d\nIt is the law that a judicial admission by a party which contradicts bis allegations defeats recovery. Huber v. Black and White Cab Co., 18 Ill App2d 186, 151 NE2d 641; Tennes v. Tennes, 320 Ill App 19, 50 NE2d 132; Miller v. Stevens, 63 SD 10, 256 NW 152.\nThe defense relies largely upon McCormack v. Haan, 20 Ill2d 75, 160 NE2d 239, which does not depart from tbe rules contained in our other citations, but does say that tbe whole testimony of tbe party must be evaluated and not just a part of it. Tbe case involved a situation where the plaintiff on tbe stand admitted that tbe defendant bad stopped before entering an intersection. Tbe Supreme Court\u2019s view of tbe entire testimony was that tbe plaintiff\u2019s testimony bad only conceded that tbe defendant stopped, but held that it was tbe duty of tbe defendant, even after tbe stopping, \u201cto ascertain whether or not it was safe to enter tbe protected intersection, and if it was not reasonably safe to do so, be should have yielded tbe right of way to tbe oncoming vehicle.\u201d\nIn tbe case now before this court an evaluation of tbe total testimony of tbe plaintiff discloses that be is contending tbe defendant\u2019s truck, confronted by a sudden emergency, was attempting to avoid a collision by swerving off onto tbe right shoulder, and that then the Feazel car struck it, and after this collision it came across the road into the westbound lanes. Taking this as the fact and noting the uncontradicted testimony that the truck was so disabled the driver had no possibility of managing it after the collision, the conclusion becomes inescapable that no case is made out against the defendant\u2019s truck. It affirmatively appears from plaintiff\u2019s own testimony that defendant committed no actionable fault upon which the plaintiff is entitled to predicate liability and the motion for directed verdict should have been granted. Accordingly, the judgment is reversed.\nJudgment reversed.\nCULBERTSON, P. J. and HOFFMAN, J., concur.",
        "type": "majority",
        "author": "SCHEINEMAN, J."
      }
    ],
    "attorneys": [
      "Burroughs, Sims on & Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellants.",
      "Listeman and Bandy, Brady, Donovan & Hatch, all of East St. Louis, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "Edwin Nowak, Plaintiff-Appellee, v. Robert W. Schrimpf, Donald F. Schrimpf, d/b/a Piasa Oil Company, Defendants-Appellants, and Fred Feazel, Defendant-Appellee.\nGen. No. 63-M-17.\nFourth District.\nNovember 18, 1963.\nBurroughs, Sims on & Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellants.\nListeman and Bandy, Brady, Donovan & Hatch, all of East St. Louis, for plaintiff-appellee."
  },
  "file_name": "0309-01",
  "first_page_order": 333,
  "last_page_order": 338
}