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Ankney v. Myroth

SEPTEMBER 19, 1961.

GORDON ANKNEY, APPELLANT

v.

JOHN T. MYROTH, JR., APPELLEE.



Appeal from the Circuit Court of Ogle County; the Hon. LEON A. ZICK, Judge, presiding. Judgment affirmed.

SPIVEY, P.J.

This appeal is from an order of the Circuit Court of Ogle County denying plaintiff's post trial motion after a verdict by a jury in favor of the defendant. Plaintiff's action was for personal injuries sustained in an automobile collision on April 26, 1957.

The collision occurred at the intersection of two gravel roads. Plaintiff was travelling in a southerly direction, and defendant was travelling in an easterly direction. Photographs show that the defendant's auto struck the plaintiff's auto on the right side near the center of the car. In the collision, the plaintiff sustained serious personal injury. At the intersection, the uncontradicted evidence shows that visibility of each of the drivers was obstructed as they approached the intersection.

Plaintiff contends that the verdict of the jury is against the manifest weight of the evidence and that the Court erred in giving two instructions for the defendant. For these reasons, he requests a new trial.

Plaintiff's burden, in this case, was to show by the greater weight of the evidence that he was exercising ordinary care for his own safety, that the defendant was negligent, and that the negligence of the defendant proximately caused injuries to the plaintiff. The evidence conclusively shows that plaintiff was injured. Thus, if we are to grant plaintiff a new trial, on the theory that the verdict is against the manifest weight of the evidence, we must find that the jury's determination that the plaintiff failed to prove he exercised ordinary care, that the defendant was negligent or that plaintiff's injuries were proximately caused by defendant's negligence, or any one of these elements is wrong according to the evidence offered in the cause.

To sustain his burden on the issue of the plaintiff's exercise of ordinary care, plaintiff called the defendant as an adverse witness. He also called deputy sheriff Ronald Zimmerman and Boyd Galen Ankney, post occurrence witnesses, Ronald Ankney, the son of the plaintiff, who was riding with plaintiff, Donald E. Gillis and Blair Thuestad, post occurrence witnesses, and the plaintiff testified in his own behalf.

As opposed to this, defendant called Charles S. Knox, a surveyor, George Dunham, a state police officer and post occurrence witness, and the defendant testified in his own behalf.

Plaintiff testified that he approached this intersection from the north and that his view to his right was obscured by buildings, bushes and trees. When he was 300 feet north of the intersection his vision was obstructed and he was traveling 35 to 40 miles per hour. Then he started to reduce his speed by taking his foot from the accelerator. When he was 30 feet north of the intersection, he had his first unobstructed view for 800 feet west. Then he saw the defendant 200 feet west at an undetermined speed. When his car was at the intersection, he looked right again and the defendant was 75-80 feet away, and plaintiff could not then estimate defendant's speed. Plaintiff continued through the intersection and was struck when his vehicle was in the southwest corner of the intersection. At the time of the accident, plaintiff was traveling 20 miles per hour.

Defendant testified that he approached the intersection at a speed of 30 to 35 miles per hour. He did not recall looking right or left within the last 300 to 400 feet before the intersection but did apply his brakes when 50 to 75 feet from the intersection. He could only vaguely remember seeing plaintiff's car before the collision and stated that he had no vision to the north, right up to the intersection.

The other witnesses testified that there were skid marks for 50 to 75 feet west of the intersection which extended into the intersection for about two feet. The cars came to rest in the southeast corner of the intersection with plaintiff's car in the ditch in that corner. Visibility was stated to be almost zero until a driver was in the intersection, and the impact was said by one witness to be in the southeast quarter of the intersection.

We do not know on what basis plaintiff's claim was refused by the jury. However, it may well have been that they concluded the plaintiff was not using ordinary care. It is true that plaintiff offered the larger number of witnesses and that there is little conflict in the evidence. However, this type of evidence does not admit of but one conclusion. Involved herein is the question of the statutory right of way at an intersection. It was solely for the jury to decide if plaintiff was exercising ordinary care for his own safety when he entered the intersection.

When plaintiff was 30 feet from the intersection, the defendant was 200 feet west. While plaintiff traveled the next 30 feet, the defendant traveled 120 feet according to plaintiff's testimony. If both cars continued to approach the intersection at this rate, a collision would seem to be inevitable. The jury may have concluded that an ordinarily careful person would have chosen a different course of action. We cannot say that such a conclusion is compelling but neither can we say that such a conclusion is against the manifest weight of the evidence.

Courts have always been troubled by a definition of the rights of parties at intersections. Recently in Genck v. McGeath, 9 Ill. App.2d 145, 132 N.E.2d 437, an intersection case, the defendant chose to offer no testimony in his behalf. The trial court directed a verdict for the plaintiff and defendant appealed contending that even on the basis of the uncontradicted evidence the issues of negligence and due care were for the jury. The Third District Appellate Court reversed the trial court. In that case the facts were strikingly similar to the instant case. The court said, "Even where there is no dispute in the evidence but where inconsistent conclusions may legitimately be drawn, the question is one for the jury."

This case was followed by the First District Appellate Court in Ryan v. Goldblatt Bros., Inc., 24 Ill. App.2d 239, 164 N.E.2d 280. In the Ryan case, the court said, "There are cases such as those involving a collision at an intersection, where the circumstances under which the accident occurs makes the ...


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