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Osborne v. Redell

JULY 16, 1959.

MILTON S. OSBORNE, PLAINTIFF-APPELLEE,

v.

GERALD D. REDELL AND DONALD STANCIL, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Whiteside county; the Hon. GEORGE O. HEBEL, Judge, presiding. Affirmed.

JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

Rehearing denied August 14, 1959.

The plaintiff, Milton S. Osborne, brought this action to recover for personal injuries and damages to his car, sustained by him through the alleged negligence of the defendants, Gerald D. Redell and Donald Stancil, in driving the automobile of Redell. Following a trial before the court and a jury, a verdict was returned in favor of the plaintiff, for $12,000, upon which the trial court entered judgment.

At the close of the plaintiff's case and again at the close of all the evidence, the defendants moved for a directed verdict, which motions were overruled. After the verdict, the defendants filed a post-trial motion to vacate the judgment for the plaintiff and enter a judgment for the defendants, or, in the alternative, to grant a new trial, or, in the alternative, that the damages be reduced as excessive. The post-trial motion was overruled and this appeal by the defendants followed. No question is raised on the pleadings.

The defendants here urge error in two particulars: (1) that the plaintiff was guilty of contributory negligence as a matter of law and that the trial court should have directed a verdict in favor of the defendants; and (2) the trial court erred in giving one of the plaintiff's instructions and refusing one of the defendants' instructions to the jury.

The well-established rule in jury cases of this type is that contributory negligence is ordinarily and preeminently a question of fact to be decided by the jury. The question of contributory negligence becomes a matter of law for the trial judge or this court only when it can be said that all reasonable minds would reach the same conclusion under a particular factual situation, that is, that the facts in evidence did not establish due care and caution on the part of the person charged with contributory negligence: De Legge v. Karlsen (1958) 17 Ill. App.2d 69; Pinkerton v. Oak Park Nat. Bank (1958) 16 Ill. App.2d 91; Thomas v. Buchanan (1934) 357 Ill. 270. Only if there is no competent evidence tending to show the plaintiff was exercising due care or to raise a reasonable inference of such care, — where the court can clearly see that the injury was the result of the negligence of the party injured, — may the question be considered a question of law for the court: Illinois Cent. R. Co. v. Oswald (1930) 338 Ill. 270.

[2-5] A motion by the defendant to direct a verdict is in the nature of a demurrer to the evidence. The rule is that in considering such a motion the trial court should consider the evidence produced on the part of the plaintiff in the light or aspect most strongly in the plaintiff's favor and give it every reasonable inference and intendment favorable to the plaintiff. The court may not, on such a motion, weigh the evidence. This rule follows the proceedings into the appellate court on an appeal and if we should find that there is competent evidence, standing alone, which, with all reasonable inferences and intendments therefrom, considered in an aspect favorable to the plaintiff, tends to support the plaintiff's claim, we cannot find error in that respect, and then it becomes our duty to consider other alleged errors, if there be such: Blumb v. Getz (1937) 366 Ill. 273; Humbert v. Lowden (1944) 385 Ill. 437; Lindroth v. Walgreen Co. (1950) 407 Ill. 121.

A review of the evidence, including the photographs in evidence, reveals that the accident which caused the plaintiff's injury took place October 26, 1956 at approximately 5:45 p.m., it being dusk, on or at the southeasterly end of a bridge on Spring Hill Road spanning the Rock River near Erie, Illinois. The weather was clear. Spring Hill Road is a two-lane black top highway, approximately 26 feet wide. The bridge and Spring Hill Road at this point run in a southeast-northwest direction. The road turns rather sharply to the northeast at a curve some 800 feet away, or southeast, from the bridge, that being the direction from which the plaintiff was approaching. The Spring Hill Road is almost at a right angle at that curve in relation to the latter bridge. The road is, however, straight, southeast-northwest, at the scene of the incident at the bridge. A gravel park road intersects, on an upgrade, the generally southwest side of Spring Hill Road approximately 70-100 feet from the southeasterly entrance to the bridge. It is about 100 feet from a stop sign on the far, or right, or southeasterly side of the park road to the bridge entrance, and the park road or opening is about 30 feet wide. The park road extends in a generally southwest direction at the point of its intersection with Spring Hill Road, and it does not run across Spring Hill Road to the northeast, — it simply extends to the southwest off that road.

The defendants were called as adverse witnesses under Section 60 of the Civil Practice Act [Ill. Rev. Stats. Ch. 110] and testified, in substance, that the defendant Stancil was driving the car at the invitation of the defendant Redell, the owner of the car, who was seated in the right front seat beside Stancil. It was dusk and the headlights of the automobile were on low beam. The defendants had driven out from Erie southeasterly on the Spring Hill Road, crossed the bridge, turned off that road onto the gravel park road, drove down into the park, turned around, then came back up the gravel park road and approached the Spring Hill Road, preparatory to turning left or northwesterly thereon to return to Erie. Both testified the car stopped at the stop sign situated about 10 feet from the Spring Hill pavement. Both testified they had an unobstructed view 800 feet to the right or southeasterly from the stop sign along the Spring Hill Road, from which direction the plaintiff was approaching. The driver and passenger testified they each looked both ways and neither one of them saw the plaintiff's car approaching from the right. The gravel park road leads up from the Rock River and a park and enters Spring Hill Road only from the southwesterly side and the defendants' car, when poised at the stop sign, before making any turn, was then generally facing in such a position that its headlights would have been shining generally toward the plaintiff's car approaching from the southeast at a distance down the Spring Hill Road.

The defendant Stancil testified he never at any time before the accident saw the plaintiff's car nor the lights of his car approaching although there was nothing to obscure his view for at least 800 feet; the first he knew of the plaintiff's car was when Redell said a car was coming and then two seconds later it went around their car on the right. The defendant Redell said he was never aware of the plaintiff's car until about two seconds before it went by him on the bridge; he said "there's a car"; and that at that time the lights were on on the plaintiff's car. There is no showing of any signals for a left turn by the defendants' car onto the Spring Hill Road but the defendants claimed to have stopped for the stop sign as they came up to that road.

Milton Osborne, the plaintiff, testified, in substance, that he was familiar with the Spring Hill Road, had been driving in a generally northwesterly direction thereon approximately 60 m.p.h. towards Erie, in the right hand lane, and had the headlights of his car lighted. As the plaintiff came around or straightened out around the curve southeasterly of the scene of the incident and approached the bridge he was looking generally toward the headlights of another car (the defendants') which were apparently facing him in the left or opposite lane of Spring Hill Road. He let up his foot feed, did not put it on again, and continued on, with no particular attention to that car, which appeared to him to be proceeding towards him on the southwesterly or opposite side of the highway. The plaintiff continued toward the bridge on his own right half of the highway until he became suddenly aware of taillights about 10 feet immediately in front of him apparently either stopped or moving at a slow rate, and occupying not only a substantial portion of the right side of the road at the entry to the bridge but also generally somewhat in the center of the road. There was no other traffic at the time in either direction.

A fair deduction from the evidence is that at about this juncture, the defendant Stancil, coming up on the gravel park road, proceeded out into Spring Hill Road at about 8 to 10 m.p.h. and began to execute a left turn, northwesterly, towards Erie. His turn had not been quite fully completed (the defendants say they had almost completed the turn) as he reached the southeast entrance to the bridge, a scarce 70-100 feet from the intersection of the gravel park road and the Spring Hill Road. The defendants' automobile at this point was travelling substantially in the right center of the roadway within about 7 feet of the right hand side and directly in the path of the plaintiff's automobile approaching from the right, — one of the defendants said their car may not have been perfectly straight (with the road) but was in that general direction, — and the defendants evidently admit they were over (or left of) the center line, but not more than a foot they say.

In making this left turn the headlights of the defendants' automobile, set at low beam, were, of course, turned left at the beginning of the turn and hence lost to the view of the oncoming driver, the plaintiff, approaching from the right. Thus, the plaintiff suddenly saw taillights a few feet in front of him on the approximate center or right hand side of the road instead of the headlights which he had previously very shortly before seen facing him apparently on the left hand side of the road as if from a vehicle approaching on Spring Hill Road from the opposite direction.

The plaintiff testified he could not go around the defendants' car to the left because that automobile was in the center of the roadway. The plaintiff made a quick decision to stay in the right hand lane in which he was travelling and endeavored to pass the defendants' automobile in the space between the right side of that car and the right side of the paved portion of the highway. He got past the defendants' automobile, but just as he did his right rear wheel hit the catwalk of the bridge, and threw his car into a skid into the left hand side of the bridge. The plaintiff's automobile then went ahead on the bridge on the left side of the roadway about 250 feet, struck a post, and came to rest against the bridge railing or balustrade on the left side. The two cars did not come into contact with each other. The plaintiff was going about 40 m.p.h. when his right rear wheel hit the ...


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