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Haskell v. Perkins

FEBRUARY 21, 1958.

PETER HASKELL, A MINOR, BY RALPH HASKELL, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

J.P. PERKINS, HENRY OTTE, WALTER L. TINSLEY, HARRY HANSON AND ALBERT W. SIEGMUND, DEFENDANTS. ALBERT W. SIEGMUND, DEFENDANT-APPELLANT.



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

PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 2, 1958.

Peter Haskell, a minor, by Ralph Haskell, his father and next friend, brought this action in the Circuit Court of Champaign County against J.P. Perkins, Henry Otte, Walter L. Tinsley, Harry Hanson and Albert W. Siegmund to recover damages for personal injuries allegedly resulting from the negligence of the defendants.

The complaint charged joint, several and concurrent negligence on the part of the defendants and as to the defendant Siegmund, it is alleged therein that he "carelessly and negligently operated, maintained, controlled and drove his said automobile so that as a direct and proximate result thereof the plaintiff was injured; and (b) carelessly and negligently stopped, parked or left his said automobile upon the paved portion of the said highway so as to block the said highway contrary to and in violation of Chapter 95 1/2, Paragraph 185, Ill. Rev. Stats. 1955."

Judgment by default in the amount of $25,000 was entered against the defendant Tinsley. Before the trial, a guardian ad litem was appointed for the defendant Albert W. Siegmund, a minor. The cause as to the defendants other than Tinsley proceeded to trial before a jury. At the close of plaintiff's case, the court directed a verdict in favor of defendant Otte. The jury returned a verdict for $35,000 against the defendants Perkins and Siegmund and found the defendant Hanson not guilty.

Defendants' post trial motion was overruled and judgment was entered on the verdict. This appeal is prosecuted by the defendant Siegmund.

At the time of his injury, plaintiff was 19 years old and an air force student stationed at Chanute Field, Illinois. On the evening of August 5, 1955, he and a fellow student, Louis Martinez, met the defendant at a drive-in movie in Champaign. At about 11:30 that evening, plaintiff and his companion were invited by defendant to ride with him to Danville, Illinois. The weather was clear and visibility good. The party of three left Champaign in defendant's Chevrolet automobile with defendant driving. Defendant drove east on Route 150 toward Danville to a point about 1/4 of a mile west of the Village of Fithian, where he observed the defendant Otte's Studebaker car which was crosswise on the north shoulder of the highway, facing northwest with its front wheels in a small ditch north of the pavement. Defendant suggested stopping as the disabled car might need some help. However, the defendant did not stop but drove on into Fithian and then turned around and returned to the place where the Otte automobile was standing. The defendant then parked his car on the north shoulder of the highway 10 to 12 feet east of the Otte Studebaker and he and his passengers walked to the Otte car. Defendant offered his help in getting the Studebaker out of the ditch and Otte gave him a rope. Plaintiff and Martinez walked east about 10 feet from the Studebaker and stood north of a ditch on the roadside about 18 to 21 feet north of the pavement. The paved portion of Route 150 was 18 feet wide with shoulders on both sides thereof. The north shoulder was 8 to 10 feet wide and slopes away from the pavement 15 or 16 feet to a ditch which was from 6 inches to a foot in depth. Just prior to this time, Harry Hanson, driving a 1954 stakebody Ford truck and accompanied by his son Paul, came upon the scene and was waved down by Otte. Hanson thereupon stopped his truck about 45 or 50 feet west of the Otte car, leaving his left rear dual wheels on the north edge of the pavement. The truck was 7 1/2 feet in height and approximately 1 1/2 feet higher than the defendant's Chevrolet. Defendant then pulled his car on to the pavement and backed it to within a few feet of the rear-end of the Studebaker and tied the rear bumpers of the two cars together with the rope furnished by Otte. When defendant attempted to pull the Studebaker, the rope broke. Defendant attempting to retie the rope, drove his car to the south shoulder and again backed it north across the pavement to a point where the rear of his car was 3 to 5 feet south of the Studebaker. Harry Hanson testified that he went 150 feet west of his truck and set out a reflector flare; that his son went 330 to 350 feet east of the Studebaker, placed a flare on the north edge of the pavement and waved a flashlight back and forth across the road. At about that time, the defendant Tinsley, driving a Chrysler car, and the defendant Perkins, driving a Buick car, approached the scene from the east. The evidence as to whether there were any reflectors or warning signals on the highway as Perkins approached is in conflict. The same is true of the evidence as to what lights were burning on the three vehicles standing at the scene. The Tinsley and Perkins cars were 3 or 4 car lengths apart and traveling between 55 and 70 miles per hour with the Chrysler in the lead. Tinsley swerved his car to the left on to the south shoulder of the road and passed the scene without incident. When the Tinsley car swerved, Perkins pulled his Buick to the north shoulder, went completely off the pavement and struck plaintiff, injuring him severely. After striking plaintiff, the Perkins car went forward in the ditch and struck the Studebaker. Perkins was unable to fix the point at which he turned his car on to the shoulder or how far the car travelled before striking the Studebaker. Other witnesses testified that the Perkins car was completely off the road for a distance of almost 400 feet.

The grounds upon which defendant's appeal is based are that as a matter of law, his conduct was not the proximate cause of plaintiff's injury but that the conduct of Perkins was the sole proximate cause thereof; that plaintiff was guilty of contributory negligence as a matter of law or in the alternative as shown by the greater weight of the evidence; that plaintiff was a guest of defendant and was required to allege and prove wilful and wanton misconduct as against the defendant; that the rights of defendant, who is a minor, were not properly protected by the trial court and that the verdict is excessive.

The rule applicable in determining whether a negligent act or omission is the proximate cause of an injury is well established and has been recited in numerous decisions. It is tersely stated in Neering v. Illinois Cent. R. Co., 383 Ill. 366, where the court said:

"What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. (Illinois Central Railroad Co. v. Oswald, 338 Ill. 270; Hartnett v. Boston Store of Chicago, 265 Ill. 331.) An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. (Illinois Central Railroad Co. v. Oswald, 338 Ill. 270; Pullman Palace Car Co. v. Laack, 143 Ill. 242). The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable."

As to what is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury from a consideration of the attendant circumstances and all the evidence in the case. I.L.P. Negligence, Sec. 267. It is only where the facts are not only undisputed but are such that reasonable men would not differ in their opinion as to the inferences to be drawn therefrom that the question of proximate cause becomes one of law for the court. Manion v. Chicago, Rock Island & Pacific Ry. Co., 12 Ill. App.2d 1. If there is sufficient evidence in the record to support a finding that the alleged negligence was the proximate cause of the injury for which plaintiff sues, then such issue becomes one of fact for the jury. McClure v. Hoopeston Gas & Electric Co., 303 Ill. 89; Kahn v. James Burton Co., 5 Ill.2d 614; McLaughlin v. Alton Railroad, 278 Ill. App. 551.

In passing upon the contention that as a matter of law the sole proximate cause of plaintiff's injury was not the conduct of defendant but that of defendant Perkins, the determinative question is whether the evidence was sufficient to take this issue to the jury. The evidence discloses no dispute as to the fact that as the Perkins and Tinsley cars approached the scene of the accident, the defendant's car was standing crosswise on the paved portion of the road; that defendant was then engaged in tying a rope between the rear of his car and the Otte Studebaker; that defendant's car blocked the entire westbound traffic lane and a portion of the eastbound lane; that the Hanson truck, which was about 1 1/2 feet higher than the defendant's Chevrolet, was parked on the north shoulder 45 to 50 feet west of the Otte car; that the left rear wheel of the truck was on the pavement; that the lights on the rear of the truck were burning; that plaintiff took no part in the attempted car moving operation but was standing about 20 feet north of the pavement; that the Tinsley car reached the scene first and was 3 to 4 car lengths ahead of the Perkins' car; and that the Otte car was on the north shoulder of the highway at a right angle to the pavement.

The evidence as to the speed of the Perkins and Tinsley cars; the distance the Perkins' car travelled after leaving the pavement; as to how far he was from the scene when he left the pavement and the presence of reflectors or the waving of signals is conflicting. There also appears to be considerable controversy concerning the testimony of Perkins as to what caused him to swerve his car to the right on to the shoulder and into the ditch. The defendant contends that the testimony of this witness is conclusive on that feature of the case. Called by plaintiff as a witness under Section 60 of the Civil Practice Act [Ill. Rev. Stats. 1957, Ch. 110, § 60], Perkins testified that after the Chevrolet turned to the left, the first thing he saw was the truck which was on the pavement; that he saw no lights on it and saw no flares or reflector. Upon reexamination he stated that when he turned left he saw something on the road ahead of him; that it was a motor vehicle which looked to him as though it was crosswise of the highway and had the highway blocked and that he did not see any other vehicle further west. When called as a witness in his own behalf, Perkins, in substance, repeated the above statements. Clarence Thurman, a passenger in the Perkins' car, testified that when the Perkins' car turned right and went into the ditch, he looked ahead, saw something in the road but could not tell what it was. This witness further stated "I saw a dark object as we left the pavement and before we left, he hit the brakes." When the foregoing is considered together with the testimony of other witnesses and with the evidence as to other circumstances existing at the time of the accident, it becomes evident that the jury were not bound to accept Perkins' version as to the cause of his leaving the road as being true and uncontradicted. There was also before the jury the testimony of the witness Paul Hanson, who in substance testified that as the Chrysler and Buick cars came upon the scene, he was standing near the pavement at a point 300 to 350 feet east of the accident; that he was waving a flashlight; that he could see the red lights on the rear of the truck; that he saw the defendant back his car up to the Studebaker and go to the back of his own car; that he turned around and saw the Chrysler and Buick cars coming out ...


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