Appeal by defendant from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the May term, 1952. Reversed and remanded. Opinion
filed July 3, 1952. Released for publication July 28, 1952.
MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.
James A. Brussel, a minor, by Howard L. Brussel, his father and next friend, and Howard L. Brussel, individually, plaintiffs and appellees, obtained judgments on verdicts of a jury for the sums of $5,000 and $2,500, respectively, in the circuit court of Winnebago county, Illinois, and against the defendant, Delbert Lilly, appellant, in their action to recover for personal injuries, for property damage, and for other damages sustained by the plaintiffs, arising out of an automobile collision. The defendant Delbert Lilly has appealed. The appeals are separate, but by stipulation of counsel they are to be considered as a single appeal.
The amended complaint consists of two counts. The acts of negligence charged in both counts of the complaint are identical. They charge in substance: that on the night of May 27, 1951, the plaintiff, James A. Brussel, a minor about sixteen years old, was driving the automobile of his father, Howard L. Brussel, also a plaintiff herein, in a westerly direction on State Highway 173 in Winnebago county, Illinois, and was exercising proper care and caution for his own safety. At the same time and place the defendant, Delbert Lilly, was also driving his automobile westerly. The complaint further charges that the defendant negligently and unlawfully parked his automobile on the paved portion of the highway, and also parked his automobile without lights and negligently failed to signal or warn other vehicles approaching from the rear of the presence of his automobile. The complaint further alleged that due to the negligence of the defendant, the automobile driven by James Brussel and approaching defendant's automobile from the rear came into contact with that automobile.
The first count asked for damages for personal injury to James A. Brussel; the second count asked for damages for property damage caused by the destruction of the automobile belonging to Howard L. Brussel and for other damages sustained by him.
The defendant filed an answer to this complaint denying all liability.
At the close of all the evidence the court denied the defendant's motion to direct a verdict and subsequently denied a motion for judgment notwithstanding the verdict. The defendant assigns this as error.
From the testimony it is undisputed that the highway in question was about eighteen or twenty feet wide, constructed of concrete with the usual divided traffic lanes; that the highway was straight and level for at least half a mile both ways from the place of the collision; that it was raining slightly and both parties were using their windshield wipers; that after contact with the Lilly car, James Brussel lost control of his car and it went into the other lane of traffic where it came into contact with the car of Donald Larsen, bounced off his car while in the same lane of traffic and ran into the car of Donald Clark, and then proceeded some distance down the highway. The Larsen and Clark cars were both approaching the Brussel car from the west and were in their proper driving lane.
Delbert Lilly, the defendant, testified that while he was driving his automobile on the highway in question accompanied by his wife and two children, he heard a pop in his motor, and suddenly all the lights went out and his motor stopped; that he touched the brakes gently, and his wife opened the right-hand front door of the car to see the location of the ditch; that he had some visibility from the lights of approaching cars; that when his automobile came to rest it was half on the highway and half off on the shoulder which was muddy. He further testified that not over five or six seconds from the time when his motor and lights failed, the defendant's car struck him from behind; that the first time he saw the defendant's car was after stopping when he looked in his rear vision mirror. At this time he did not get out of his car, but reached for a flashlight in a compartment in the rear of his car; he intended to flag down the Brussel car with the flashlight. He and his wife both testified that he did not get out of his car until after the impact. He stated that the Brussel car struck him within three seconds after he first saw its lights; that the force of the impact threw defendant's wife and infant daughter onto the shoulder of the road, and then he got out of the car to see how his family were and to assist them.
James A. Brussel testified that he was driving his father's car with his girl friend, Shirley Smith, on the night in question; that he had been traveling about fifty miles an hour at the time he saw the Lilly car; that he was driving with his headlights dim, that his visibility as to unlighted objects on the highway was about one hundred feet ahead; that when he saw the Lilly car he applied his brakes and at the time of the impact was traveling fifteen or twenty miles an hour; that the front right side of his car struck the back left portion of the defendant's car; that the defendant's car was only slightly damaged; and after striking the defendant's car, Brussel lost control of his car and it went over into the other lane of traffic, colliding with two cars approaching from the opposite way. The Larsen car which he struck in the other lane of traffic was wholly demolished, and the Brussel car traveled about two hundred feet before it came to rest after striking the two cars, and ended up in a ditch to the south of the highway. James Brussel further testified that he was thoroughly familiar with the highway.
Perry Bennett, a deputy sheriff, testified that he arrived at the scene of the accident shortly after it happened; that he had a conversation with the defendant; that the defendant said he got out of his car after the lights and motor failed and walked around it to see what the trouble was, and that it was then that he first saw the lights of the approaching Brussel car, which lights were "right on top of him," and that he then attempted to reach his flashlight to flag down the Brussel car. Bennett further testified that adjacent to the Lilly car there was a flat, ten-foot shoulder partially sodded and solid enough for a car to drive over without sinking on the night in question, but that when he arrived all four wheels of the Lilly car were on the pavement.
Donald Larsen testified that when he, approaching from the opposite direction, first saw the defendant's car, it was two or three car-lengths away; that he saw the Brussel car strike the Lilly car and then it "bounced off of him and hit me"; that after the impact the Lilly car was "just about the same as it was . . . but it was still entirely on the highway." He said that the Brussel car as an estimate was going "50 or 60 anyway."
Donald Clark whose car was also involved in the collisions testified that he was following the Larsen car, saw the Brussel car collide with the Larsen car, and later the Brussel car collided with his car; that after his car was hit he saw the defendant's car on the highway down the road, all four wheels on the concrete and facing in a westerly direction; that he did not see the lights of the defendant's car go out.
This in substance is the testimony of the witnesses with reference to the accident in question.
After reviewing the testimony, we believe the trial court was correct in denying the motions for directed verdicts and for judgment notwithstanding the verdicts. The question here is not whether the verdicts are against the manifest weight of the evidence but whether there was any evidence, considered in its light most favorable to the plaintiffs and all inferences and deductions that may be legitimately drawn therefrom, that would establish the plaintiffs' case. (Hunt v. Vermilion Co. Child. Home, 381 Ill. 29; Moran v. Gatz, 390 Ill. 478; Ritter v. Nieman, 329 Ill. App. 163.)
It cannot be said as a matter of law that what the defendant did with reference to taking his automobile off the highway cannot be negligence. The fact of whether or not it was off the highway or partially off the highway at the time of the collision are questions of fact on which negligence might be predicated and under the law, if the acts could be negligence as determined from all the testimony, then the motions must be denied. This rule is likewise true as to the alleged contributory negligence of the plaintiff. We are not stating here whether or not the verdicts are manifestly against the weight of the evidence, but we find that on the ...