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Emond v. Wertheimer Cattle Co.

NOVEMBER 5, 1958.

GEORGE EMOND, APPELLEE,

v.

WERTHEIMER CATTLE COMPANY, INC., AND JOHN PRAETZ, APPELLANTS.



Appeal from the Circuit Court of Cook county; the Hon. R.B. AUSTIN, Judge, presiding. Judgment against defendant, John Praetz affirmed, and judgment in favor of Wertheimer Cattle Company, a corporation, reversed and cause remanded with directions.

JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

George Emond sued Wertheimer Cattle Company, Inc., a corporation, hereinafter called the corporation, and John Praetz, hereinafter called the defendant, for injuries suffered as a result of an intersection automobile collision between plaintiff's truck and an automobile operated by the defendant. The theory of plaintiff's complaint was that the defendant negligently operated the car driven by him and that at the time of the occurrence he was the agent of the corporation acting within the scope of his agency. At the close of plaintiff's case both defendants moved for directed verdicts. The court denied defendant's motion and sustained the corporation's similar motion, ruling that plaintiff had failed to prove prima facie that the defendant was the corporation's agent. The case proceeded as to the defendant and resulted in a verdict for $85,000, upon which judgment was entered. The court denied post-trial motions by the plaintiff and the defendant. The defendant prosecutes an appeal and the plaintiff prosecutes a separate appeal from the directed verdict and judgment in favor of the corporation.

On October 4, 1951, plaintiff was employed as a route driver by a laundry company. He was covering his regular route driving a panel laundry truck. His route included stops on Wheaton-Naperville Road north and south of Route 34. Just prior to the collision at about 1:30 P.M., he had stopped at the house of a customer who lived on the Wheaton-Naperville Road north of Route 34. He then proceeded south on that road toward the intersection with Route 34. He intended to cross Route 34 and continue south to the house of another customer on the Wheaton-Naperville Road. Route 34 (also known as Ogden Avenue) extends from east to west at the intersection with the Wheaton-Naperville Road. The traveled portion of Route 34 consists of two lanes of pavement for westbound traffic and two lanes of pavement for eastbound traffic. Route 34 is a preferential highway, being protected by stop signs on the north and south sides thereof at the intersection with the Wheaton-Naperville Road. Wheaton Road intersects from the north. The stop sign on the west side of Wheaton Road north of Route 34 is 96 feet north of the north edge of Route 34. Wheaton Road is paved and widens out considerably at the junction with the pavement on Route 34. The gravel roadway extending south of Route 34 is known by several names, one of which is Naperville Road and is about 20 feet wide. It widens considerably at its intersection with Route 34. West of its intersection with the Wheaton-Naperville Road, Route 34 rises to the crest of a knoll which is 12 feet above the standard grade and approximately 6 feet above the grade at the intersection where the collision occurred.

The defendant was driving his Chevrolet sedan in an easterly direction along Route 34. David E. Jones of Aurora was a passenger in the car. Defendant says that he was driving at a speed of 40 to 45 miles an hour. Defendant's theory of the case is that he was traveling in an easterly direction along the arterial highway at approximately 45 miles per hour; that plaintiff failed to stop his vanette truck before attempting to cross the preferential highway and drove directly in front of defendant's approaching vehicle; that defendant's automobile collided with the right rear corner of plaintiff's truck in the most southerly eastbound lane near the south edge of the highway; that plaintiff's truck continued to the south, tipped over on its left side and stopped against a utility pole; and that if there was any negligence on the part of defendant, the plaintiff was guilty of contributory negligence barring any right of recovery.

Plaintiff's theory of the case is that he approached Route 34 from the north along the Wheaton-Naperville Road traveling 20 to 25 miles an hour. He intended to cross the highway and proceed south on the Wheaton-Naperville Road. He stopped at the stop sign 96 feet north of Route 34, then moved slowly forward and stopped again at the north edge of the highway. He looked to the east and saw westbound trucks which he permitted to pass and he continued to observe them until he had a clear view toward the west. At that time he could see no traffic approaching from the west along Route 34. He then again looked east, observed that traffic approaching from that direction was a considerable distance away and started into the intersection. As he drew near the center of the highway he looked again to the west and saw defendant's automobile approaching at a speed of 70 to 90 miles an hour. It had previously been hidden from view by a hill and a curve which are approximately 300 feet west of the intersection of Route 34 and the Wheaton-Naperville Road. Plaintiff shifted into second gear and continued to cross the highway. Defendant attempted to brake his car when 50 feet from plaintiff. Because of the high rate of speed at which it was traveling, defendant's car skidded to the right and struck the rear of plaintiff's truck south of the pavement of Route 34 on the Wheaton-Naperville Road. As a result, plaintiff suffered the loss of his left arm, a broken jaw, two injured vertebrae and other severe injuries.

The defendant, arguing that the judgment is contrary to the law and evidence, calls attention to the appropriate statutes in effect at the time of the occurrence, particularly that all vehicles entering upon or crossing highway 34 shall come to a full stop as near the right-of-way of such highway as possible and regardless of direction shall give the right-of-way to vehicles upon such highway. (Sec. 167, Ch. 95 1/2, Ill. Rev. Stat. 1951.) Section 183 of the same chapter provides that all vehicles shall stop in obedience to the stop sign. The defendant says it was the duty of the plaintiff to yield the right-of-way to the defendant; that the collision could not have occurred the way plaintiff described it; that the evidence shows that plaintiff failed to give the right-of-way to the defendant at the intersection; and that plaintiff drove into this protected intersection in front of defendant's approaching vehicle when he could not safely do so. Defendant states further that plaintiff's witnesses claim there was a 50 foot skid mark; that the undisputed testimony is that defendant applied his brakes for a substantial distance before the impact, thus slowing the Chevrolet car down so that it was almost stopped before the impact; that defendant had been traveling 40 to 45 miles an hour; and that although plaintiff was able to convince the jury that the collision occurred south of the south edge of Route 34, "it must be apparent that no man not blinded by passion and sympathy would believe it."

[1-3] The second point advanced by the defendant is that plaintiff was guilty of contributory negligence as a matter of law, citing numerous cases. Defendant says that plaintiff wholly failed to prove by a preponderance of the evidence that he was exercising due care and caution for his own safety at and prior to the occurrence. Questions of negligence are for the jury and a judgment notwithstanding the verdict will not be granted if there is any evidence to support the verdict. In deciding this question the court will not weigh the evidence or consider conflicting evidence. Only the evidence most favorable to the verdict will be considered in the light most favorable to the verdict. Kahn v. James Burton Co., 5 Ill.2d 614; Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153; Seeds v. Chicago Transit Authority, 409 Ill. 566. The defendant and Jones, who was riding with him, testified that plaintiff failed to stop at or near the intersection; that he drove onto Route 34 when defendant's car was only 50 to 75 feet from the intersection; that defendant was driving at a speed of 40 to 45 miles an hour; that defendant tried to stop but was unable to avoid hitting plaintiff's truck because he drove right in front of defendant. Plaintiff testified that he stopped at the stop sign and again at the edge of Route 34; that he looked both ways and permitted the oncoming traffic to clear the intersection; that when he started to cross the intersection defendant's car was not in sight; that when he had partially crossed the highway he observed defendant's car approaching at a speed of 70 to 90 miles an hour; that he then attempted to finish crossing the intersection; that defendant was driving so fast that he was unable to stop or control his, defendant's car; that defendant skidded and swerved and collided with plaintiff's truck south of the edge of Route 34 on the Naperville Road. We cannot agree with defendant that plaintiff's account of the collision presents a physical impossibility. There was competent evidence to support plaintiff's theory that defendant could have seen him several hundred feet away; that because of defendant's speed and lack of control he was unable to stop; that he skidded and swerved off the road to the right and struck plaintiff's truck; and that the proximate cause of the collision was the defendant's excessive speed and his failure to maintain proper control and lookout consistent with the physical facts.

From a careful reading of the testimony and exhibits and a consideration of the law applicable to the situation, we conclude that plaintiff made out a case and that the defendant should not have judgment notwithstanding the verdict. Our remarks with respect to the proof of plaintiff's action are applicable to the second point urged by the defendant, that plaintiff was guilty of contributory negligence as a matter of law. A reading of the testimony convinces us that competent evidence sustains plaintiff's contentions that he was exercising reasonable care in the operation of the truck at all pertinent times. Defendant also argues that the verdict is against the manifest weight of the evidence and that the trial court erred in not allowing him a new trial. We find that the judgment is supported by competent evidence and that the court was right in refusing to grant a new trial.

Defendant insists that the court committed reversible error in giving instruction No. 15, which reads:

"If you find from a preponderance of the evidence that George Emond stopped the truck he was driving as near the north right-of-way line of Route 34 as possible and that at the time he started to cross Route 34, vehicle traffic on Route 34 was at such a distance from the intersection that it would not, if driven at reasonable speed, have reached the intersection before George Emond, if driving with ordinary care would have safely crossed the intersection, then you are instructed that George Emond had the right-of-way."

Defendant argues that this peremptory instruction gave the right-of-way to a motorist entering a preferred highway protected by stop signs and completely disregarded the theory of the defendant, supported by the evidence. He says the instruction was erroneous for the reason that it overlooked the duty of the defendant not only to stop before entering the intersection but also not to proceed into the intersection until he could safely do so. Defendant states that the question of fact for the jury to decide was not whether the plaintiff thought he could safely cross before the defendant reached the intersection, but whether plaintiff did in fact stop his truck, whether or not he did look to ascertain whether he could proceed safely, and whether or not he remained stopped until he could proceed safely.

One of the points made against this instruction is that it failed to emphasize sufficiently the plaintiff's statutory duty as defined in Sec. 167, Ch. 95 1/2, Ill. Rev. Stat. 1951. The criticized instruction was immediately followed by an instruction tendered by the defendant which recited the statutory language upon which he relied. Plaintiff's instruction No. 15 would give him the right to proceed only if he stopped and perceived that any approaching vehicle was so far distant that he could safely cross before it reached the intersection. We do not feel that the jury would be misled by this instruction. The instructions read as a series presented a correct and fair statement of the law.

Defendant asserts that instruction No. 14, given at the request of plaintiff and which instructed the jury as to what they should consider in determining the plaintiff's case, constitutes reversible error, citing Signa v. Alluri, 351 Ill. App. 11. Defendant says that the instruction unduly and unnecessarily emphasizes the phrase "failed to exercise ordinary care" to do certain acts, and that this unduly highlighted plaintiff's allegations and charges. The instruction summarized the allegations of the complaint including the specific charges of negligence. A defense instruction summarized the defenses relied upon by the defendant as alleged in his answer. We ...


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