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Gordon v. Farmer City Cheese Co.

SEPTEMBER 6, 1961.

GLEN H. GORDON, AS ADMINISTRATOR OF THE ESTATES OF BARBARA SMITH AND MAUDE SMITH, BOTH DECEASED, PLAINTIFF-APPELLANT,

v.

FARMER CITY CHEESE COMPANY ET AL., DEFENDANTS. THOMAS W. BISHOP, JR., ARTIS G. BRADSHAW, AND FRANK B. OSTERBUR, AS ADMINISTRATOR OF THE ESTATE OF RALPH B. SMITH, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding. Affirmed.

ROETH, PRESIDING JUSTICE.

This is a wrongful death action arising out of the collision of a passenger automobile with a milk truck. The passenger automobile was being driven by Ralph Smith. His wife, TheDA Smith, and three children were passengers in the car. Ralph Smith and the daughter Barbara Smith, aged 3 1/2 years, and the daughter Maude Smith, aged 5 months, lost their lives in the collision. The wife TheDA and the son, a small child, sustained injuries but survived the collision. The milk truck was being driven by defendant Thomas W. Bishop, Jr., who was at the time, the employee of defendant Artis G. Bradshaw. The suit in question was brought by the administrator of the estates of Barbara Smith and Maude Smith against the administrator of the estate of Ralph Smith, charging in separate counts, that as to each deceased the said Ralph Smith was guilty of wilful and wanton misconduct in the operation of the passenger automobile and against Bishop and Bradshaw, charging in separate counts that as to each deceased, Bishop as servant and Bradshaw as master were guilty of negligence in the operation of the milk truck. By separate verdicts the jury found the issues in favor of all defendants and judgments were entered on the verdicts. Post trial motions of the plaintiffs were overruled. This appeal followed.

The first and principal error assigned by counsel for plaintiffs is that the verdicts are contrary to the manifest weight of the evidence. In considering this assignment of error we are required to examine the evidence in some detail. In so doing we are cognizant of the well settled rule which guides us, namely: a court of review cannot hold the jury's verdict to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident.

The collision in question occurred on August 23, 1958, at 11:00 a.m. The day was a good summer day, the weather was clear and the visibility good. It occurred on Route 150, a paved highway, in front of the driveway leading into the Kagel farm in the country. At the point of entrance into the Kagel farm, Route 150 extends in a northwest-southeast direction. Some 500 feet northwest of the entrance to the Kagel farm, Route 150 curves to the north. As an automobile proceeds on Route 150 in a southerly and southeasterly direction around the curve, the entrance to the Kagel farm is clearly visible at a point 800 feet northwest of the entrance and proceeding another 300 feet in a southerly-southeasterly direction around the curve the highway straightens out at the 500 foot point. At the time of the occurrence the southbound lane of Route 150 was 9 feet wide and the northbound lane was 11 feet wide and the highway was in the process of being widened with grading on both sides but no permanent topping having as yet been added. The entrance to the Kagel farm is on the left as a car proceeds southeasterly, with the driveway extending at approximately a 70° angle to the northeast. In other words, the Kagel driveway does not enter Route 150 at a 90° angle. The angle is sharper going southeast and wider going northwest. These road conditions are undisputed.

On the morning of the occurrence Bishop left Farmer City at from 6:30 to 7:00 a.m. to pick up milk along Route 150 for Bradshaw. He was driving a milk truck. This consisted of a cab for the driver, to the rear of which was a truck frame extending out over dual rear wheels. On this frame there was mounted an enclosed box like body. This enclosed box like body was 13 feet long and extended 6 feet to the rear of the center of the dual rear wheels and 3 feet to the rear of the truck frame upon which it was mounted. The over-all length of the truck and body was 22 feet and it was 7 feet 8 inches wide and 8 feet high. The cab of the truck was red and the box like body white with large red lettering on the sides. Prior to leaving Farmer City, Bishop cleaned the windshield, side glasses, side mirrors and directional lights. The truck was equipped with directional lights in the front with amber like lenses and directional lights in the rear with red lenses. Bishop tested the directional lights and brakes and found them to be in working order. There is no dispute as to these facts.

Bishop was called as a witness under Section 60 by plaintiff and later testified on his own behalf. There is no material variance in his testimony given on both occasions. He testified that prior to 11:00 a.m. he had picked up about 3,000 pounds of milk which together with empty cans was in the box like body. He was travelling south and southeasterly on Route 150 intending to pick up milk at the Kagel farm. As he came around the curve he was travelling 45 m.p.h. and as he approached the Kagel driveway he reduced his speed. As he rounded the curve he turned on his left directional signal and the lights inside the cab indicated the light was on and operating. He testified he was in the right hand lane and as he approached the Kagel driveway he bore his truck to the right of the highway in order to negotiate the turn into the driveway. As he was in the process of turning he was proceeding at 5 to 10 m.p.h. and he looked in his rear view mirror and saw the car operated by Ralph Smith just barely rounding the curve, 800 feet away, and proceeding in the same direction he was travelling. Bishop testified he was proceeding into the Kagel driveway and as the cab of the truck was well off the highway the collision occurred. He testified his left cab window was down, that he did not hear any horn, that if a horn had been sounded he would have heard it, and that he did not hear any squeal of tires or brakes.

Photographs in evidence indicate that the truck was struck at a point to the rear of the rear dual wheels. The box like body was torn loose from the frame and turned upside down on the east shoulder. The rear end of the truck was pushed sideways and the truck came to stop with the rear end of the frame projecting onto the highway in front of the Kagel drive. The left front of the Smith automobile was demolished and the engine, etc., pushed back into the front seat. The automobile came to rest on the east shoulder to the southeast of the overturned box like body.

Two State Troopers and a Deputy Sheriff testified for plaintiffs. They went to the scene after the collision. They testified to distances to the curve, visibility coming around the curve and the location of the truck and milk body after the collision. They all inspected the highway and did not find any evidence of skid marks by either vehicle.

TheDA Smith, wife of Ralph Smith, testified for plaintiffs. She testified she remembered coming around the curve and first saw the milk truck when the car in which she was riding was 600 feet from it. She testified that her best judgment was that the speed of her husband's car at that time was between 55 and 60 m.p.h. She says her husband eased to the left of the highway to pass and when 75 feet from the truck, the truck turned left in front of her husband's automobile. Thereupon her husband pulled sharply to the right. On cross examination she admitted having made a statement almost two months after the accident in which she said she did not know how fast her husband was driving the car, didn't remember coming out of the curve, and did not see the truck before the accident. She accounts for this discrepancy by saying that she suffered a partial amnesia and at the time of the trial the events of the occurrence were gradually coming back to her. In fairness to the witness it should be noted that the record reveals that she suffered severe head injuries and was rendered unconscious.

Counsel for plaintiffs contend that the verdicts finding each defendant not guilty are not consistent with any legitimate interpretation of the evidence. They argue that since the question of contributory negligence does not arise in this case, one or both of the defendants is or are liable and that a verdict exonerating both cannot stand. The jury in this case had two separate issues to decide, i.e., (1) was defendant Bishop guilty of negligence and (2) was the deceased driver of the automobile guilty of wilful and wanton misconduct. By finding defendant Bishop not guilty the jury found that Bishop did nothing which a reasonably prudent person would not do nor failed to do that which a reasonably prudent person would do in the operation of his truck. Apart and distinct from this finding, the jury found that the conduct of the deceased driver was not a conscious disregard for the safety of his passengers or an intentional disregard of a known duty necessary for their safety. The jury might well have believed the deceased driver was negligent and that his negligence was the sole proximate cause of the occurrence, but this was not the issue before the jury. The verdicts as returned by the jury are consistent. Wise v. Wise, 22 Ill. App.2d 54, 159 N.E.2d 500. Basically what counsel for plaintiffs would have this court do, is to substitute its judgment for that of the jury and to hold that the conduct of Bishop was negligence and/or that the conduct of the deceased driver was wilful and wanton misconduct. This we cannot do under the record before us.

At the request of counsel for defendant Bishop the court gave Bishop's instructions #3 and #4 which were as follows:

"#3. The court instructs the jury that the plaintiff is required by law to prove his case by a greater weight or preponderance of the evidence; and if the jury shall believe that the plaintiff has not so proven his case as to Counts I and III against Thomas Bishop, Jr., and Artis G. Bradshaw, or if the evidence is evenly balanced so that the jury are in doubt and unable to say on which side is the preponderance, or if the preponderance of the evidence is in favor of the defendants, Thomas W. Bishop, Jr., and Artis G. Bradshaw, then in either of these cases your verdict should be for the defendants, Thomas W. Bishop, Jr., and Artis G. Bradshaw.

"#4. The Court instructs the jury that if you find from the evidence and under the instructions of the court that the plaintiff is not entitled to recover from the defendants Thomas W. Bishop, Jr., and Artis G. Bradshaw then you will have no occasion to consider the question of damages as against such defendants, or the nature or extent of the plaintiff's loss or damage, if any, as against such defendants."

At the request of counsel for the administrator of the deceased driver the court gave Osterbur's instructions #1 ...


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