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Warren v. Patton





Appeal by plaintiff from the Circuit Court of Franklin county; the Hon. CHARLES T. RANDOLPH, Judge, presiding. Heard in this court at the October term, 1953. Affirmed in part, reversed in part, and remanded. Opinion filed February 24, 1954. Rehearing denied and modified opinion filed May 24, 1954. Released for publication May 25, 1954.


Rehearing denied and modified opinion filed May 24, 1954.

The plaintiff, Alfred Warren, brought this action for personal injuries received through the alleged negligence of persons driving and operating a horse-drawn scavenger wagon, on a black-top public highway at night. The team was being driven by employees of defendant, Roy Patton, who was engaged in hauling refuse for the City of West Frankfort, to a dump north of the city limits. The plaintiff was driving his car southward toward West Frankfort on a warm summer night, with the windows open and his left arm resting on the sill, the left elbow protruding slightly outside the window.

In meeting and passing the horses, some portion of the harness or equipment caught plaintiff's arm, twisting it about his neck, and causing severe injuries. He was hospitalized for some time, and in the process of surgery, a part of the tibia of plaintiff's left leg was removed and used for a bone graft in his arm. Later, while plaintiff was walking in the hospital, his left leg broke at the weakened place.

The case has been tried twice. Originally, the City of West Frankfort was a co-defendant, but was dismissed by the court at the first trial. The jury returned a verdict for $15,000 against defendant, Roy Patton, but the latter's motion for a new trial was allowed.

Plaintiff's arm had not responded to treatment, and, prior to the second trial, he underwent further hospitalization and complicated surgery. The first attempted bone graft had failed, it was removed and a second made by taking a piece of bone from the hip. Permanent injuries are indicated. On the second trial, plaintiff received a verdict for $22,500. The defendant moved for judgment notwithstanding the verdict, and for a new trial, both motions were allowed and judgment entered, from which this appeal followed.

In passing upon the motion for judgment notwithstanding the verdict, all evidence favorable to plaintiff on the issues involved should be considered as true, and if that evidence and the reasonable inferences therefrom sustain the plaintiff's case, the motion should be denied. Lindroth v. Walgreen Co., 407 Ill. 121; Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300; Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104.

Plaintiff testified that he was driving well on his side of the pavement, that he was looking ahead but saw no lights until the moment of impact, when he saw two lights like lanterns. The men on the wagon seat were wearing carbide lamps on their caps. These consisted of small reflectors backing a carbide flame in the open air, where the flame would be affected by wind, and by the turning of heads. One of the lamps was in evidence for inspection by the jury.

There were no other lights on the front of the wagon, except that one of the men said he had a hand flashlight. On the back of the wagon there was another light affixed so that it projected 8 1/2 inches from the box. There was some question whether this light could have been visible from the front. A picture of the wagon in evidence shows the double trees projecting wider than the box, so that the horse on that side could easily obscure the lamp when viewed from the front, especially if he were pulling wide in the harness.

Thus the testimony by plaintiff makes it appear reasonable that the lighting on the wagon was greatly inferior to the lights normally used on vehicles at night. The jury might properly find that the lights failed to meet the requirement of the law, and were so inadequate as to make it negligent to operate in that manner. There also arises an inference that the horse was pulling wide, or at least was in position to fling part of the harness in the path of the oncoming vehicle, since plaintiff claims to have been well in his own lane.

Plaintiff is corroborated by another witness, Maddox, who drove south on the same road the same night. He met the wagon at a place near a railroad trestle, identified as a few hundred feet south of the point of the collision, so that this meeting must have been a short time before plaintiff was injured. Maddox testified that he saw an approaching car turn into his lane and then back again, as if it had gone around some object. When the car passed he put on his bright lights, and slowing down, looked for the object. He saw no lights and did not discover the wagon until he was practically upon it, and found it crowding him.

From the foregoing, it seems clear that the evidence was sufficient to take the case to the jury on the question of defendant's negligence. At the same time, if defendant was negligent in failing to provide adequate light, then it is reasonable to find plaintiff was not guilty of contributory negligence for failure to see the inadequate light.

Whether a person driving at night on a straight highway should, by the use of ordinary care, see in the light of his own headlights, a dark or inadequately lighted object, is clearly a question for the jury.

The question remains whether plaintiff should be deemed negligent as a matter of law, for riding with his arm on the window ledge. Obviously, there is some danger in this practice, but it is not apt to result in harm if there is a reasonable space maintained between vehicles meeting on the road. The extent of the danger will vary ...

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