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Cook v. Boothman

MARCH 9, 1960.

RUBY COOK, PLAINTIFF-APPELLANT,

v.

HOMER BOOTHMAN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of St. Clair county; the Hon. QUINTEN SPIVEY, Judge, presiding. Judgment affirmed.

JUSTICE HOFFMAN DELIVERED THE OPINION OF THE COURT.

This was an action for personal injuries arising out of an automobile collision. After a trial by jury, verdict was rendered for the defendant. Judgment was entered upon this verdict by the court, and it is from this judgment that plaintiff perfects this appeal.

The collision occurred on June 6, 1957, at about 4:45 p.m. near the junction of routes 157 and 50 in St. Clair County. Route 157 runs generally north and south and crosses over route 50 which runs generally east and west. To the north of the overpass, a ramp leads up from route 50 in a northwesterly direction and forms a Y junction as the two roads merge. The ramp leading up from route 50 is the preferential highway, and a stop sign controls traffic from the south on route 157 heading north into the Y. From this stop sign, it is a distance of several hundred feet to the merger of the main traveled portion of route 157 and the ramp. Except for this one stop sign, there were no other traffic controls at the intersection.

At the trial, the only occurrence witnesses to testify were the plaintiff and the defendant, and they told conflicting stories with regard to the exact location of the collision.

The plaintiff testified that she was driving north on route 157, that she stopped at the stop sign, waited for three cars to pass, and while stopped was struck suddenly from the rear by the defendant.

The defendant testified that he was also driving north on route 157; that he saw plaintiff as she stopped at the stop sign; that he was then 100-150 feet behind her; that plaintiff moved out ahead and defendant came up to the stop sign and stopped; that while defendant was at the stop sign he was not watching the plaintiff ahead of him, but was observing the ramp coming up from route 50; that a car was coming up this ramp from the southeast and defendant kept his eyes on that car; that as he watched this car he put his own automobile in motion; that as he did this he didn't look towards the plaintiff; that he accelerated to 10-15 miles per hour, still watching the car on the ramp; that he suddenly turned to look ahead and saw plaintiff's car stopped directly in front of him; that he was then about one car length behind plaintiff, he jammed on his brakes, but could not avoid hitting the plaintiff from the rear; and that plaintiff was stopped "on the highway" about 150 feet from the stop sign.

The plaintiff argues that the defendant was guilty of negligence as a matter of law, that plaintiff was free of contributory negligence, and that, therefore, the trial court should have directed a verdict for the plaintiff. To support this position, she cites Ceeder v. Kowach, 17 Ill. App.2d 202, 149 N.E.2d 766; Harrison v. Bingheim, 350 Ill. 269; Crowe Name Plate & Mfg. Co. v. Dammerich, 279 Ill. App. 103; Bell v. Illinois Farm Supply Co., 334 Ill. App. 216, 78 N.E.2d 838; and Russell v. Consolidated Forwarding Corp., 330 Ill. App. 529, 71 N.E.2d 853.

In the Ceeder case, supra, the plaintiff and the defendant were driving their automobiles in the same direction. Both cars were in the same lane with defendant 10 to 15 feet to the rear. About 100 feet from an intersection, both cars were held up momentarily for traffic. When they started again, defendant stayed to the rear at a speed of 10 to 15 miles per hour. At the intersection plaintiff stopped his car for a red light, and defendant's car skidded on wet pavement and the collision resulted. The court said on pages 203 and 204 of 17 Ill. App.2d, on page 767 of 149 N.E.2d:

"We think defendant was guilty of negligence as a matter of law since it is our opinion that he should have foreseen that plaintiff would probably have to stop for a red light; that traffic on adjoining lanes would prevent turning out of the way of plaintiff's car; that he would have to apply his brakes; that his car would probably skid on the wet pavement if the brakes were applied too suddenly; and that if he were going too fast or was not far enough behind he would collide with plaintiff's car. The fact that his car skidded into plaintiff's car, even though the pavement was wet, leaves room for no other inference, we think, except that under the circumstances defendant `was driving too fast or following . . . . too closely.'"

In the Harrison case, supra, the defendant, in order to avoid striking a car that suddenly had pulled away from the curb in front of him, turned his own car to the left, and in so doing, collided with the plaintiff's car, which was approaching from the opposite direction in its proper lane. In holding the defendant liable, the court said on page 273 of 350 Ill.:

"If a driver omitting to use reasonable care in the control of his automobile and about to collide with another suddenly changes his course and collides with a car traveling in its proper place he cannot escape liability for striking the latter car. . . . It was his duty to anticipate that cars would withdraw from their parking space and that cars would be going east on the opposite side of the street. It was his further duty to use reasonable care not to collide with either. The undisputed evidence shows that he ignored both duties.

"The circuit court correctly directed a verdict against the defendant. There was nothing left to submit to the jury except the question of damages. . ."

In the Bell case, supra, an action was brought for damages to an automobile sustained in a collision with the rear of a gasoline transport truck which had stalled on the pavement at night when the brakes locked. The Appellate Court, in reversing a judgment against the trucker, analyzed the evidence and concluded that there was an accidental break in the truck's mechanism which gave to its operator no choice other than to permit it to remain upon the pavement. It stopped because it became disabled. When it stopped, it was adequately lighted and continued to be during the time it remained on the highway. Numerous witnesses testified to the lighting around the truck and the court commented that apparently the plaintiff was the only person who failed to observe the lights. In this regard, see also Jacobson v. Chicago Motor Coach Co., 328 Ill. App. 131, 65 N.E.2d 142.

In the Crowe case, supra, plaintiff approached an open city intersection and collided with defendant. This court, in reversing a verdict for plaintiff, found that the manifest weight of the evidence established that plaintiff could have seen the other car in ample time to have stopped, and thus could have avoided the collision had ...


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