Appeal from the Circuit Court of DuPage county; the Hon. MEL
ABRAHAMSON, Judge, presiding. Judgment reversed.
PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Virginia Pennington, as administrator of the estate of her deceased husband, Ernest Pennington, brought this action against Donald H. McLean, Jr., to recover damages for the alleged wrongful death of her intestate which was occasioned as a result of a collision of the truck which plaintiff's intestate was driving and an automobile driven by the defendant.
The complaint consisted of two counts. At the conclusion of all the evidence, the court directed a verdict in favor of the defendant on the wilful and wanton count. The other count of the complaint charged that the defendant was negligent in that (a) he failed to keep his vehicle under control; (b) he failed to keep a good and proper lookout for other vehicles; (c) he failed to yield the right of way to plaintiff's intestate; (d) he operated his vehicle at a high and dangerous rate of speed and (e) he failed to sound his horn or do anything whatever to avoid the collision when danger was imminent and known to the defendant.
The answer of the defendant denied all charges of negligence and denied that plaintiff's intestate was in the exercise of due care for his own safety just before and at the time of the collision and averred that the collision occurred as a result of the careless and negligent operation of the truck which plaintiff's intestate was driving. The issues made by this count and the answer thereto were submitted to a jury resulting in a verdict and judgment in favor of the plaintiff and against the defendant for $22,500. Post trial motions for judgment notwithstanding the verdict and in the alternative for a new trial were denied and defendant appeals.
The record discloses that at the time of his death decedent was forty-three years of age and was survived by his wife and two sons, aged nine and six, respectively. His weekly earnings were between seventy-five and eighty dollars and on November 9, 1955, about six o'clock in the evening, he was driving a Sears-Roebuck pick-up delivery truck in a southerly direction across the two west-bound traffic lanes of route 64, also known as North Avenue outside the village of Glen Ellyn in a sparsely built up section of DuPage County.
Route 64 is a four lane highway which runs in an easterly and westerly direction with a center line dividing the east and west traffic lanes, and the east and west traffic lanes are divided by a center line into outside and inside lanes. It is inferred from the evidence that decedent entered Route 64 on the north side thereof from Richmond Street which is an improved dirt highway but which does not continue south after it reaches Route 64. It is a dead-end Street and there is a stop sign at the customary distance north of the north edge of Route 64. If projected south across Route 64, Richmond Street would lead into the curbing directly in front of what is known as Ki's Restaurant. After reaching Route 64 from Richmond Street, in order to proceed upon a highway in a southerly direction, it is necessary to drive west on Route 64 a distance of about 115 to 120 feet and then make a left turn to the south on a dirt or gravel road known as Goodrich Avenue.
Approximately 600 feet west of the center line of Richmond Street where it intersects Route 64 is the crest of a hill, so Route 64 as it proceeds easterly traversing this distance and for several hundred feet east of the Richmond Street intersection is down grade.
Michael Fitzner testified that he lived in Wheaton and was engaged in the greenhouse business; that he was driving east on Route 64 on the evening of November 9, 1955; that the west-bound traffic was very heavy but there was very little east-bound traffic; that when he was on the crest of the hill some 150 or 200 yards west of the Richmond Street intersection he first saw the truck being driven by decedent and at that time the truck was crossing the west-bound traffic lanes of Route 64.
As abstracted, this witness then testified: "The front of the truck was close to the center of North Avenue (Route 64). It was moving very slow and moving at an angle southwest. I saw the accident. I saw the other car involved in the collision when he was trying to get around the truck. I can't recall exactly just where it was when I first saw it but it was between the two south lanes or the two east-bound lanes. I can't say how far apart the car and this truck was or how close they were together. I didn't pay much attention. I just saw that the car was trying to get around the truck. When I saw him (the defendant) he was just about on top of the truck and that was when I saw the truck crossing the east-bound lanes. I didn't pay any attention to the other cars. I was looking out for my driving because I saw the truck ahead of me. I don't know and I don't remember whether there was other traffic in the west-bound lanes when I first saw the truck. When the car and truck came together the front of the truck was in the outside lane of the east-bound traffic. The right front corner of the car came in contact with the right rear of the truck. When I saw the car hit the truck the corner of the truck that he hit was just about in the center of the highway dividing the east and west-bound lanes."
This witness further testified that after the accident, "the front of the truck was about half on the highway and half off of the highway on the south side of the pavement facing a little to the northwest and that the defendant's car was between the two east-bound lanes some 15 to 20 feet east of the truck and approximately in the center of the two east-bound traffic lanes."
The only other occurrence witness was the defendant. He was called by the plaintiff for cross-examination under Section 60 of the Practice Act and testified that he was employed by W.G. Parrish, Incorporated at Geneva, Illinois, and that his work was general machine shop work; that upon the evening in question he was on his way home and was alone in his car and was driving in an easterly direction on North Avenue or Route 64; that at the intersection of Main Street and North Avenue there were stop and go lights; that this intersection was approximately one-third of a mile west of the point where his car collided with the truck driven by plaintiff's intestate; that as he proceeded through the Main Street intersection he was driving about 35 miles per hour travelling in the inner east-bound traffic lane; that he did not stop at the intersection as the lights had turned to green prior to the time he arrived at the intersection; that as he proceeded east there was a hill and after he had passed the crest of the hill and had travelled about 100 yards east downgrade he changed the course of his car to the outside lane of traffic and increased his speed to 50 or 55 miles per hour; that his driving lights were on and would cast a beam approximately 100 yards in which he could pick up an object; that the distance from the top of the hill to the place where the accident happened was about 400 feet; that as he proceeded east in the outside lane he did not recall that there were any vehicles travelling east on the inner east-bound lane to the left of his car or that there were any other cars in the immediate vicinity going east at the time. He further testified when called as a witness for plaintiff under Section 60 of the Practice Act that he did not know how fast his car was going at the time of the accident, that he did not sound his horn and did not see the truck which he hit "until after the accident had been fully accomplished."
When called as a witness in his own behalf, defendant testified that he left his place of employment in Geneva about 5:30 p.m. and had traveled between thirteen and fifteen miles to the place of the accident; that the weather was cool, the pavement dry and it was dark; that North Avenue or Route 64 is a blacktop pavement divided into four lanes, two east-bound and two west-bound with a double yellow center line; that the intersection of Main Street and Route 64 is located at the bottom of a hill; that the west-bound traffic was heavy, but no traffic was ahead of him and when he came to the top or crest of the hill after passing through the Main Street intersection, he was in the outer east-bound traffic lane traveling approximately 50 or 55 miles per hour; that he first saw the truck which plaintiff's intestate was driving when he was passing Goodrich Avenue and that he was then about one hundred fifty feet west of the point of impact; that at that time the truck driven by decedent was in both of the west-bound lanes of traffic, the front of the truck facing in a southerly direction, approximately in the middle of the four traffic lanes.
In response to his counsel's question as to what occurred after defendant first saw the truck, defendant testified: "I took my foot off the gas pedal and started to apply the brakes and I saw that the truck was proceeding south to cross Route 64, then I turned my wheel and still applying my brakes tried to avoid the truck by going behind it. The right front of my car and the truck's right rear came together." In reply to his counsel's inquiry as to the exact location of the truck on the highway at the time of the impact, defendant stated: "The position of the truck was in both east-bound lanes, approximately 90% of the outer lane and approximately two-thirds of the inner lane. At the moment of impact my car was approximately two-thirds in the inner east-bound lane and approximately one-third across and over the center lines."
The record shows that after the impact defendant's car stopped in the inner east-bound lane facing southeasterly twenty-five to thirty feet from the truck, which was facing in a northwesterly direction, partly in the east-bound traffic lane and partly off the highway. The lights on the overturned truck ...