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Pennington v. Mclean

OPINION FILED MAY 22, 1959.

VIRGINIA PENNINGTON, ADMX., APPELLANT,

v.

DONALD H. MCLEAN, JR., APPELLEE.



APPEAL from the Appellate Court for the Second District; — heard in that court on appeal from the Circuit Court of Du Page County; the Hon. MEL ABRAHAMSON, Judge, presiding. MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Plaintiff, Virginia Pennington, instituted wrongful death proceedings against defendant, Donald H. McLean, Jr., for his alleged negligence in causing a collision between his car and the truck driven by plaintiff's intestate, Ernest Pennington, which resulted in his death. The circuit court of DuPage County entered judgment on a jury verdict awarding plaintiff damages of $22,500, which the Appellate Court reversed on the ground that plaintiff's intestate was contributorily negligent as a matter of law. (18 Ill. App.2d 316.) We have allowed plaintiff's petition for leave to appeal.

The essential inquiry on this appeal is whether plaintiff's intestate was contributorily negligent as a matter of law, or whether there is any evidence that he was in the exercise of due care at the time of the collision.

In reviewing the record to ascertain whether there is any such evidence, we shall consider first the physical surroundings, then the facts and circumstances relating to the collision. The collision occurred at approximately 6 P.M. on November 9, 1955, on the outskirts of Glen Ellyn, Illinois, at the intersection of Route 64, also known as North Avenue, and Richmond Street. North Avenue is a 40-foot, four-lane, preferred highway, running east and west. It consists of two lanes of pavement for westbound traffic, and two lanes for eastbound traffic. Richmond Street is a two-lane blacktop road, which extends north from North Avenue, but does not fully intersect it, so that if Richmond Street were extended through the intersection, it would end in Ki's Restaurant, located on the south side of North Avenue. It must be noted further that about one-third of a mile west of this point where Richmond Street leads into North Avenue is the intersection of Main Street and North Avenue, where there are traffic lights. North Avenue at that point is level, but as it continues east it proceeds upgrade to the crest of a hill which is some 600 feet west of the Richmond Street intersection and then slopes downward as it runs east past the Richmond Street intersection.

Plaintiff's intestate, driving a Sears Roebuck & Company truck, approached the intersection of North Avenue and Richmond Street from the north, and defendant approached it from the west as he was driving his car downhill on North Avenue, in an easterly direction. It was already dark, the pavement was dry, and the weather was clear. There were only two witnesses to the collision, defendant, and the witness Fitzner, who was also driving on North Avenue in an easterly direction, about 150 feet behind defendant.

The witness Fitzner testified in substance that as he drove over the top of the hill on North Avenue, he first noticed the Sears truck about 150 to 200 yards ahead. It was then across the westbound lanes, close to the center of the highway, headed at a southwest angle, and moving very slowly across the intersection, since the westbound traffic was heavy. He did not see defendant's car until it was almost on top of the truck, which was then crossing into the eastbound lanes. The truck was in the outside lane of the eastbound traffic lanes when the right front end of defendant's car hit the right rear corner of the truck, which then spun around and tipped over, so that it was facing northwest and lying on top of plaintiff's intestate. The truck was then partly off the highway in Ki's driveway, and partly in the outside lane nearest the edge of the pavement.

Defendant testified both under section 60 of the Civil Practice Act, as an adverse witness, and on his own behalf. In his original testimony under section 60, defendant stated that he was driving east on the outside lane close to the south edge of the pavement, having crossed over to that lane after leaving the North Avenue and Main Street intersection, at which he did not have to stop as the lights changed. He claimed that he did not know how fast he was going at the time of the accident; however, in his subsequent testimony on his own behalf, defendant stated that he was going about 55 miles an hour at the time of the collision, and admitted that he had been traveling at about 65 miles an hour at the North Avenue and Main intersection.

Defendant also originally claimed, when testifying under section 60, that he did not see the truck until after the accident was fully accomplished and the truck was lying on its side; and then subsequently stated that he first saw the truck when he was 150 feet west of the point of impact, and that the truck was then in both westbound lanes, with the front end of it in the middle of the highway. Defendant also originally testified that he did not recall that any part of his own car was ever in the westbound lanes; and then subsequently testified that at the moment of impact his car was approximately two-thirds in the inside eastbound lane and approximately one-third over the center line in the westbound traffic lane. He also recalled that at the moment of the impact the truck was then in both eastbound lanes. He further testified that after the accident his car slid to a stop in the inner eastbound lane some 25 to 30 feet east of the truck, which was lying on its side, partially in the outside eastbound lane and partially in the driveway of Ki's restaurant, facing northwest.

On the basis of the foregoing evidence, along with plaintiff's testimony respecting the pecuniary losses sustained by decedent's dependents, and the land surveyor's identification of the exhibits of the area, the jury awarded plaintiff damages of $22,500. The judgment of the trial court, entered thereon, was reversed by the Appellate Court, as hereinbefore noted, on the ground that plaintiff's intestate was guilty of contributory negligence as a matter of law, and this court has allowed plaintiff's petition for leave to appeal.

Where the Appellate Court reverses without remanding a judgment in favor of plaintiff in an action at law on such grounds, it is the duty of this court to determine, as a matter of law, whether or not there is any evidence, which, taken with its intendments most favorable to plaintiff, tends to establish that plaintiff's intestate did exercise due care. (Ruspantini v. Steffek, 414 Ill. 70, 72.) If there is such evidence, the issue of due care is a question of fact for the jury (Shutan v. Bloomenthal, 371 Ill. 244; Thomas v. Buchanan, 357 Ill. 270), and plaintiff's intestate may be deemed guilty of contributory negligence as a matter of law only when the evidence of due care is so insufficient that all reasonable minds in the exercise of fair and honest judgment would be compelled to reach the conclusion that there was a failure to exercise due care. (Geraghty v. Burr Oak Lanes, Inc., 5 Ill.2d 153.) We are cognizant, moreover, that evidence of due care need not be established by direct and positive testimony, but may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision. Blumb v. Getz, 366 Ill. 273; Ruspantini v. Steffek, 414 Ill. 70.

In the instant case the inquiry is whether plaintiff's intestate was in the exercise of due care as he drove his truck onto North Avenue from Richmond Street. His conduct is affected by the statute relating to stopping at preferential highways. (Ill. Rev. Stat. 1955, chap. 95 1/2, par. 167.) The relevant portion of the statute provides: "(b) The driver of a vehicle shall stop as required by Section 86 of this Act at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed at such time as a safe interval occurs."

That provision has been construed as neither imposing an absolute liability upon the party approaching from the nonpreferential highway, nor conferring an absolute right of way regardless of all circumstances on the party traveling on the preferential highway. (Anderson v. Middleton, 350 Ill. App. 59; Wallace v. Parnell, 306 Ill. App. 310.) Thus, a person approaching a preferred highway is not required to stop, either at the stop sign or at the intersection line, long enough to permit any car that he observes on the highway to pass, regardless of its distance from the intersection. (Little v. Gogotz, 324 Ill. App. 516; Leech v. Newell, 323 Ill. App. 510.) The statute requires only that the motorist confronted by a stop sign may, exercising reasonable care, proceed across the intersection after he has stopped and yielded the right of way to such vehicles on the through highway as constitute an "immediate hazard." 164 A.L.R. 24, 25; Little v. Gogotz, 324 Ill. App. 516; De Legge v. Karlsen, 17 Ill. App.2d 69.

The Illinois decisions, however, do not provide a precise formula for determining whether a particular vehicle has conformed to set standards; that question must be determined by the jury (De Legge v. Karlsen, 17 Ill. App.2d 69; 164 A.L.R. 24, 25), and involves considerations as to relative speeds and distances of the vehicles from the intersection. Middendorf v. Loiseau, 335 Ill. App. 338; Kirchoff v. Van Scoy, 301 Ill. App. 366.

Applying these standards and considerations to the instant case, it is apparent that the best proof of which the case admits on the issue of due care is largely circumstantial. Viewing that evidence, including defendant's contradictory testimony, in the light most favorable to plaintiff, as we are bound to do, it appears that at the time of the impact the truck must have almost completed the crossing, and must have been either between the two eastbound lanes, or even beyond that point and between the outside lane and Ki's driveway. If the truck had not proceeded that distance, defendant's car, traveling in the outside lane, according to his own admission, would have hit the center, rather than the rear portion of the truck, which is where it was struck. Moreover, since defendant stated originally that he did not see the truck until after the collision, there was no reason for him to react to the imminent danger and change lanes.

The position of the vehicles immediately after the impact afforded further evidence from which the jury could conclude that the collision occurred at an advanced stage of the truck's crossing of the intersection. According to the testimony of both Fitzner and defendant, the body of the truck extended beyond the pavement of the outside eastbound lane and ...


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