Elliott v. Mckenzie

The opinion of the court was delivered by This was an action to recover damages for wrongful death.
Defendants appeal from an order of the trial court overruling
their demurrer to plaintiffs' amended petition. The allegations of the amended petition pertinent to the
questions here involved may be summarized: Plaintiffs Byron and
Grethell Elliott were the father and mother of Larry Elliott who
lost his life on December 19, 1954, at the age of fifteen years,
while a guest in an automobile owned by defendant Edwin McKenzie,
and being driven by defendant James McKenzie, Edwin's son, a
minor over sixteen years of age at the time of the accident. The
petition further alleged Edwin was the owner of a 1954 Chevrolet
sedan which he furnished defendant James for the purpose of
transporting him to and from school; that the brakes on the car
were defective and would lock when applied, which fact was known
to both defendants; that the road over which James drove, leading
from defendants' home to the city of Virgil, was a narrow
township road approximately eighteen feet wide with loose gravel
surface. It was a winding road with right angle turns and
followed the natural contours of the terrain with abrupt rises
and falls, all of which were well known to defendants by reason
of having lived for years in the locality and traveled daily over
and across the road. Due to the road condition, defendants were
fully aware that it was impossible to travel it safely at a speed
greater than thirty miles an hour.