Appeal from the Circuit Court of McLean county; the Hon.
WILLIAM C. RADLIFF, Judge, presiding. Affirmed.
JUDGE REYNOLDS DELIVERED THE OPINION OF THE COURT.
This cause arises out of the death of Claude Pantlen, in a collision between his automobile and one driven by the defendant Roy J. Gottschalk, at a rural intersection of two black-topped roads, approximately two and one-half miles east of Stanford, Illinois, in McLean County. The accident occurred at approximately 11:30 a.m. on July 6, 1957. The weather was clear, the roads were dry and visibility was good. The decedent Claude Pantlen, a rural mail carrier, on his rounds as such carrier, was driving his car southwardly approaching the intersection, on the north-south road. The defendant was driving his car westwardly approaching the intersection, on the east-west road. The two roads are each approximately 18 feet in width and there is a rise to the east in the east-west road approximately 400 feet from the intersection and a rise to the north in the north-south road approximately 300 feet from the intersection. There are no stop signs or warning devices at the intersection. The evidence of an eyewitness to the collision who saw both cars before the collision puts the speed of the Pantlen car at 50 miles per hour and that of the defendant at 65 miles per hour. It does not appear from any evidence in the record that either driver saw the car of the other before the collision. There is no evidence of either applying the brakes, there were no skid marks on the road or any evidence that either driver swerved or attempted to swerve to avoid the collision. The eyewitness, Everett Burden, saw the two cars when he was about 500 feet west of the intersection, traveling toward the intersection. He lost sight of the Pantlen car until just at the moment of the impact, but continued to see the Gottschalk car. The field at the northeast corner of the intersection was planted in alfalfa which was not high enough to limit the vision of the two drivers as to cars approaching from the east or the north, but there was an intermittent growth of weeds about four feet high on both sides of this field, bordering the two roads. This field at the northeast corner would be the field over which Pantlen and Gottschalk could have observed the approach of the car of the other.
Suit was instituted by Charlotte Pantlen, the widow, as Administrator of the Estate of Claude Pantlen, Deceased, against the defendant. The jury returned a verdict in favor of the plaintiff administrator fixing damages in the amount of $19,958. Judgment on the verdict was entered and the defendant appeals to this court.
The defendant raises two points in his appeal. 1. That the plaintiff's intestate was guilty of contributory negligence as a matter of law, and that the plaintiff had failed to meet the affirmative burden of showing the plaintiff's intestate was free from negligence that contributed to his own injury. 2. That the trial court erred in giving Plaintiff's Instruction No. 1.
Six witnesses testified in behalf of the plaintiff. Claude Baker, a Sergeant of the Illinois State Police, testified that he was called to investigate the accident. He received the call about 11:40 a.m. The day was clear and the roads were dry. He found the 1949 Chevrolet belonging to Claude Pantlen about 27 feet south of the intersection and the 1955 Chevrolet belonging to the defendant about the same distance west. The Pantlen car was on its side, and the Gottschalk car was upright. There was considerable debris and scars on the blacktop in the center of the intersection. He found no skid marks made prior to the accident, and no marks that led up to the intersection.
Edward Sanders, a special deputy sheriff, received a call about the accident at 12:20 p.m. When he arrived the two drivers were gone. Mr. Sanders confirmed the testimony of Claude Baker as to the physical conditions at the cross-roads and the position of the cars. This witness testified that there was intermittent growth of weeds along the sides of both roads, which while not continuous, made it possible for automobiles to be hidden at particular times on both roads.
Thomas A. Dossett, the postmaster at Stanford, testified that the physical and mental condition of Claude Pantlen on and before the accident was good. He testified that Mr. Pantlen had been appointed a substitute rural mail carrier in 1937 and estimated his average yearly earnings from that source at $500 to $600.
C.H. Rose, a partner in business with Claude Pantlen, testified that Mr. Pantlen was in good physical and mental condition at the time of the accident, and that he averaged about $25 per week for his compensation from this business; that Mr. Pantlen had the milk business of the partnership and he, the witness had the grocery store.
Everett Burden, whose testimony has been mentioned heretofore, was the only eyewitness. He was approaching the intersection from the west, and saw both cars. He first saw the Gottschalk car approaching from the east when it was about 400 feet from the intersection. He saw the Pantlen car about 300 feet north of the intersection. He estimated the car from the east was traveling about 65 miles per hour and the car from the north about 50 miles per hour. He saw no other cars on the two roads, and was about 400 feet from the intersection when the two cars collided. He did not see either car slow down before entering the intersection. After seeing the Pantlen car about 300 feet from the intersection he did not see it again until it entered the intersection. He did not see either car swerve before the accident and heard no horn.
Charlotte Pantlen, the widow of the deceased Claude Pantlen, testified that her husband's average yearly earnings were from $2000 to $3500 and that he was 48 years of age at the time of his death and at the time of the accident in good mental and physical condition.
Keith Loeffler, a witness for the defendant whose home is a quarter of a mile north of the intersection heard a muffled sound and looked and saw one car in the air. When he arrived at the scene of the accident only the two cars involved and the car of Mr. Burden were present. Mr. Gottschalk was in his car and Mr. Pantlen was lying in the field about 40 feet from his car. He did not observe any skid marks on the roads. He had traveled this intersection many times and stated that in his opinion on the day in question, there was nothing along the fence line to the north or east that would obstruct the vision of a car coming from the north or the east. He testified that the east-west road was the more heavily traveled road.
Harlan Loeffler, father of Keith Loeffler, a witness for the defendant, went to the scene of the accident with his son. He testified there were no skid marks and that there was no obstruction along the fence line immediately to the east or the north of the intersection. He also testified that the east-west road was the more traveled road.
Percy Logston, a witness for the defendant, lived south of the intersection. He arrived at the intersection about 2 or 3 minutes after the accident. He did not see it happen, but his wife saw the dust. He did not inspect the roads for skid marks but testified that the field in the northeast corner was planted in alfalfa which was about one foot high. He also testified that the main traveled road was the east-west highway.
A number of pictures were introduced in evidence showing the positions and the condition of the two cars after the collision. These pictures show that the Pantlen car was crushed inward on the left side, approximately the center of the car, but that the front of the Pantlen car was relatively undamaged, while the Gottschalk car was heavily damaged in the front and relatively undamaged otherwise. Considering these pictures in the light of the testimony which places the point of collision at the center of the intersection, it would seem to be without question that the Pantlen car was in the center of the intersection when it was hit, considering also the relative speed of the two cars from the testimony of the only ...