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Andres v. Green

OCTOBER 19, 1955.

ALBERT ANDRES, A MINOR, BY DEWEY ANDRES, HIS FATHER AND NEXT FRIEND; DALE KINSEL, A MINOR, BY OWEN E. KINSEL, HIS FATHER AND NEXT FRIEND; AND JOHN HALL, A MINOR, BY OSCAR HALL, HIS FATHER AND NEXT FRIEND, PLAINTIFFS-APPELLEES,

v.

ROBERTA GREEN; LAURACE L. MOLTON; ROBERT J. SEUS AND LEE TUCKER, DOING BUSINESS AS SE-US SUPPLY COMPANY, DEFENDANTS. ROBERTA GREEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign county; the Hon. CHARLES E. KELLER, Judge, presiding. Affirmed.

MR. JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

This action was brought to recover damages for injuries sustained by plaintiffs due to the alleged negligence of the defendants in operating their automobiles.

A jury trial resulted in separate verdicts for each plaintiff against the two defendants jointly, as follows: for Dale Kinsel, $5,000; for Albert Andres, $10,000; for John Hall, $10,000. Both defendants filed motions for a new trial and in the alternative for judgment notwithstanding the verdict. As to plaintiff John Hall, the motion was overruled and judgment entered on the verdict. As to the other plaintiffs, the Court overruled the motion provided remittiturs were entered as follows: Albert Andres, $2,000; Dale Kinsel, $1,500. The remittiturs were entered and the Court thereupon entered judgments on the verdicts less the amount remitted by each plaintiff. Only the defendant Roberta Green has appealed and plaintiffs have filed a cross-appeal.

No questions are raised on the pleadings or as to the giving or refusing of instructions.

As ground for reversal the defendant contends that the trial court improperly refused to direct a verdict in her favor at the close of plaintiffs' evidence and at the close of all the evidence because the proximate cause of the collision in which plaintiffs were injured was the negligence of her co-defendant Laurace L. Molton; that she was not guilty of negligence and that plaintiffs were guilty of contributory negligence and that the verdicts were the result of passion and prejudice not cured by the remittiturs and were against the manifest weight of the evidence.

Cross-errors assigned by plaintiffs are that the trial court erred in refusing to direct a verdict for each of the plaintiffs at the close of the evidence; in ruling upon the admissibility of certain evidence, in refusing to enter judgment on the original verdicts and in ordering remittiturs to be entered.

Determination as to whether there is merit in defendant's contentions requires examination of the evidence produced upon the trial. The record reveals the collision occurred January 9, 1954 about 7:30 p.m. on a 2-lane paved highway known as Route 150 at a point about 3 1/2 miles west of the City of Champaign and on the crest of a small hill; that the pavement was 18 feet wide and dry; that the weather was clear but cold; that at the place of the collision there was a 20-foot shoulder on the south side of the pavement; that Albert Andres, aged 19, was driving his car in a Westerly direction on the north side of the center line of the pavement at a speed of 45 miles per hour; that plaintiff Hall, 18 years, was riding in the front seat and plaintiff Kinsel, 19 years old and Donald Hyatt were in the rear seat; that the car of defendant Roberta Green was being driven east at a speed of about 50 miles per hour; that the defendant Laurace L. Molton was driving his car west behind the Andres car prior to the occurrence: that the point of collision was just west of an "End No Passing Zone" sign; that the Andres car was north of the center line of the pavement as it proceeded west; that the collision occurred in the westbound traffic lane; that the Andres car was at no time south of the center line; that no cars were travelling in front of or behind the Green car, and no cars were parked on the south shoulder of the road opposite the point of collision.

The above facts do not appear to be in dispute. However, there is a sharp conflict in the testimony as to the position of the Molton car just prior to and at the time of the collision and as to whether the conduct of Molton in the operation of his car was such as to constitute the proximate cause of the accident. Plaintiff Andres testified that he first saw the lights of the Molton car through his rearview mirror when it was 5 or 6 car lengths back of him; that when he was about 60 feet from the point of collision he observed Molton "starting to pull out"; that he did not see the Molton car going around his car; that he first saw the Green car when it was 196 feet away; that it was then partly on the north side of the center line; that it suddenly went across the north traffic lane; and that the right side of the Green car came in contact with the front of his car. The other passengers in the Andres car testified that they did not see the Molton car at any time.

Defendant Molton testified that he was driving about 4 or 5 car lengths behind the Andres car; that he pulled out to see whether he could pass or not; that he saw there was going to be a collision between the Andres and Green cars; that his car did not strike either of these cars; that he turned to get behind the Andres car; that the Andres and Green cars collided in the north or right-hand traffic lane; that he then made a left turn to the shoulder, lost control of his car which then went across the pavement and hit a culvert west of the scene of the collision.

The defendant Green testified that as she came to the crest of the hill, she saw the Molton and Andres cars 125 feet away; that she saw two sets of headlights straight across from each other; that she started to slow down by applying her brakes; that the Molton car was pulling into her traffic lane to pass the Andres car; that she applied her brakes; that she was struck by both cars; that the Andres car struck her first; that her car was on the pavement when struck and that she was excited when she saw the two cars coming up the hill.

Arthur Huff, passenger in the Green car, testified to seeing two pairs of headlights coming at the Green car; that he did not know how close they were when he saw them and that he did not know whether there was more than one impact.

Leslie Parker, Jr., another passenger in the Green car, testified that he saw the two headlights before the accident; that the Green car was travelling east but when he saw the headlights it was headed northeast; that he felt two impacts; that he felt the brakes being applied; and that the car then seemed to swerve to the left.

The foregoing is in substance the evidence which was before the jury upon the issue as to the cause of the accident.

In order to sustain defendant's argument that the trial court erred in refusing to direct a verdict in her favor, it must appear that upon consideration of all the evidence with all reasonable inferences therefrom, in its aspect most favorable to plaintiffs there is a total failure to prove any necessary element of ...


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