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Ohlweiler v. Central Engineering Co.





Appeal by petitioner from the Circuit Court of Rock Island county; the Hon. A.J. SCHEINEMAN, Judge, presiding. Heard in this court at PER CURIAM.

Rehearing denied December 10, 1952

Rehearing granted May 7, 1952

This is a personal injury suit brought by Orpha Ohlweiler against three defendants; namely, Margaret Musfeldt, Anson O'Brien and The Central Engineering Company, a corporation, which was engaged in construction work along the highway where the collision occurred. The plaintiff was riding as a guest in the car of Margaret Musfeldt. Anson O'Brien was driving a motor vehicle, which collided with the car being driven by Margaret Musfeldt and the plaintiff was injured.

The first count of the plaintiff's complaint charged that the defendant, Central Engineering Company, was engaged in building a four-lane highway in Rock Island county, Illinois; that part of the highway was open to four-lane traffic, and other parts only two and it was the duty of the Engineering Company to erect appropriate signs, so as to guide the travelling public onto proper lanes of traffic, but that they failed to erect and maintain the proper warning signs to apprise travellers coming north on the highway of the fact that all four lanes of the highway were open to traffic on the northernmost end of the highway that was under construction; that the black strip between the highways was misleading and confusing to drivers approaching from the south, and that the construction company maintained a barricade, a sign and a flare at the easterly lanes at the southerly point, where all four lanes were open for traffic.

The enginering company filed its answer and denied all acts of negligence on its part and alleged that in compliance with the provisions of its contract it did maintain all signs, barricades and lights required of it by the provisions of said contract in a satisfactory condition at all times, and that said defendant did provide, erect and maintain barricades, red flags and red lights at each end of the closed sections of said highway and at all intersecting roads, and did erect and maintain at the same points "travel at your own risk" signs and the warning and other signs provided by the said department of public works of the State of Illinois.

They also allege that on August 21, 1948, this road was open to traffic and practically accepted by the public and the State of Illinois, and that thereafter the defendants had no control of said portion of highway or over traffic moving thereon, but that said portion of said highway and the routing of traffic thereon, was under the control of the Department of Public Works and Building of the State of Illinois. The plaintiff filed a reply to all of the affirmative answer of defendants.

Counts II and III of the complaint charged Anson O'Brien, the driver of the vehicle which collided with the one in which plaintiff was riding, with negligence in failing to keep a proper lookout and in failing to turn into the outer lane of traffic in order to avoid the collision that injured the plaintiff. Counts IV and V charged Margaret Musfeldt, the driver of the car in which plaintiff was riding, with wilful and wanton misconduct in continuing to operate her vehicle in the wrong lane of traffic in spite of warning by her guests.

Count VI of the complaint charged that all of the defendants jointly, caused her injuries. The plaintiff asked judgment in the amount of twenty-five thousand dollars. The defendants, Musfeldt and O'Brien filed answers wherein they denied the charges against them and the defendant, Central Engineering Company, denied the charges against it, and claimed that the collision was caused by the negligence of the other defendants, and that it had no control over the traffic and that it was entitled to the same immunity from suit as the State of Illinois. Plaintiff, in her reply, denied the affirmative defenses in the answer of Central Company.

The case was submitted to a jury, and at the conclusion of the case for the plaintiff, each of the defendants made a motion for a directed verdict. These motions were all denied and the defendants put in evidence. At the close of the defendants' evidence the case was submitted to a jury that found all of the defendants not guilty. The plaintiff entered a motion for a new trial, which was overruled by the court, and judgment was then entered on the verdict, and the plaintiff has perfected an appeal to this court.

A road runs east and west through Milan which is called the Airport Road. Branching off from this road in Milan in a "Y" to the south is Route 67. Route 67 runs south for about one-half mile where it is intersected by a road running east and west, which is referred to as the Andalusia, or Knoxville Road; and Route 67, after intersecting with the Andalusia Road continues in a general southerly direction for several miles to another intersection, referred to as Castle Junction, which is located near a church camp ground. The half-mile stretch of Route 67 between the Airport Road and the Andalusia Road, on which this collision occurred is straight and flat.

Route 67, between the Airport Road on the north and Castle Junction at the south, had formerly been a two-lane highway and at the time of the collision the defendant, Central Engineering Company, was engaged in changing said two-lane highway into a four-lane highway under contract with the State of Illinois.

At the time of the collision, only two lanes of Route 67 were open to travel south of the Andalusia intersection, but four lanes were open north of a raised parkway or traffic island at the Andalusia intersection. In other words, the traffic which turned south on Route 67 off of the Airport Road at the Y, once it got a short distance beyond the Y, could travel south in the two westerly lanes. However, it was necessary for this traffic, as it approached the traffic island at the Andalusia intersection (being the portion of Route 67 open only to two lanes of traffic) to veer to the right and use only the westerly lane.

With reference to traffic northbound from Castle Junction, on the stretch of Route 67 open only to two lanes, as said traffic crossed the Andalusia intersection, it travelled north for several blocks on the west side of the traffic island or parkway, and as it reached the north end of the parkway or island, it was supposed to veer to the right on the stretch of Route 67 open to four-lane travel and use the easterly two lanes.

As to the particular facts of the collision involved in this appeal, the evidence shows that plaintiff, Orpha Ohlweiler, who was employed as Secretary of the Red Cross, a Miss Martin, the defendant Margaret Musfeldt and Miss Musfeldt's mother met near the Y.W.C.A. in Rock Island shortly before 5 p.m. on October 21, 1948. ...

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