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Battershell v. Bowman Dairy Co.

DECEMBER 13, 1961.

BILLIE J. BATTERSHELL, PLAINTIFF-APPELLANT,

v.

BOWMAN DAIRY COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. HAROLD P. O'CONNELL, Judge, presiding. Judgment reversed and cause remanded with directions.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 24, 1962.

Plaintiff appeals from a judgment on a verdict of not guilty in a personal injury suit arising out of a collision between an ambulance driven by plaintiff and a truck belonging to defendant. The accident occurred at the intersection of Lawrence and Western Avenues in Chicago on the night of February 17, 1959. Plaintiff, an employee of an ambulance service, was driving an ambulance west on Lawrence Avenue toward a hospital to which he was transporting a sick woman and two other passengers. A police officer on a motorcycle preceded the ambulance, clearing the way of traffic. Defendant's truck, a tractor with a trailer attached, was proceeding north on Western Avenue. The vehicles collided at a point just within the northeast quadrant of the intersection. The truck came to rest in the intersection and the ambulance came to rest on Western Avenue just north of the intersection. Weather conditions were fair and visibility was good. The ambulance was equipped with rotating lights on its roof and on its right front fender and with a siren.

There are two sharp issues of fact — one on who had the green light and the other on the speed of the respective vehicles. Each side is supported by witnesses other than the driver. A bystander testified that the truck ran the light after it had changed from green to red. Another bystander testified that the truck had the light. A witness named Coleman who was in an automobile southbound on Western Avenue testified that the truck had the light and that it had slowed down to 10 miles an hour. There is a question raised by plaintiff as to the propriety of this witness's testimony, which we will later consider. The two passengers in the ambulance, who have also sued defendant, testified in support of plaintiff.

The police officer who escorted the ambulance testified that when he first saw the truck it was 50 to 75 feet from the intersection and appeared to be stopping. After having signaled for traffic to stop, he proceeded west and then heard the crash. He returned to the intersection and interviewed the driver of the truck, who told him that he was going 15 miles an hour, did not see or hear the ambulance, did not stop, as the light was green for him, and that as he understood it he was not required by law to yield the right of way to a flashing signal. The driver denied most of this and testified that he always stopped for ambulances as a courtesy even when they were empty.

While the number of witnesses whose testimony favors plaintiff exceeds those for defendant on these points, this is not sufficient to warrant a finding by this court that the verdict is against the manifest weight of the evidence. It was still a question for the jury.

Plaintiff contends, however, that the driver of the truck is by his own testimony convicted of negligence and that a verdict should have been directed for plaintiff. The basis for this is the admission by the truck driver that he did not know what had happened until after the impact and that he did not see the ambulance (which he contends was due to the fact that a building at the southeast corner obstructed his view) or its flashing lights or hear the siren. This, plaintiff contends, establishes as a matter of law that the driver of the truck negligently failed to give the ambulance the right of way.

The law is clear that on a motion to direct a verdict the court may not consider any conflicts in the evidence or its weight or preponderance or the credibility of witnesses, but may consider only that evidence which is most favorable to the party against whom such a motion is directed, together with all reasonable inferences that may be drawn therefrom. Hering v. Hilton, 12 Ill.2d 559, 563, 147 N.E.2d 311, 314; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583, 69 N.E.2d 293, 300; Busser v. Noble, 22 Ill. App.2d 433, 440-42, 161 N.E.2d 150, 153-54; Foster v. Bilbruck, 20 Ill. App.2d 173, 179-81, 155 N.E.2d 366, 370-71. We must therefore accept the truck driver's testimony that he could not see the ambulance, that a building at the corner obstructed his view, that the light was with him, that he entered the intersection at a reasonable rate of speed, that when he was alerted to the danger by the policeman, he was only 30 feet from the intersection sidewalk, and that he then concentrated on stopping the truck by applying the regular brake and pulling the emergency. It must be borne in mind that all this happened in a few seconds.

[3-6] The law of Illinois gives an emergency vehicle such as the one driven by plaintiff the right of way as against other vehicles, but provides that this shall not relieve the driver of the duty to drive with due care for the safety of all persons using the highway. Ill Rev Stats, c 95 1/2, § 169, 1959. The law applies to an intersection controlled by traffic lights and thus permits the driver of an emergency vehicle to go through a red light. Ill Rev Stats, c 95 1/2, § 120, 1959; Perrine v. Charles T. Bisch & Son, 346 Ill. App. 321, 105 N.E.2d 543 (1952). A perilous situation is thereby created, since drivers of automobiles cannot be expected to approach crossings at all times with the tense and alert expectation that an emergency vehicle may approach and go through a stoplight or stop sign. A report released by the National Safety Congress recommends that ambulance travel on city streets and highways should be regulated by the same laws, rules and regulations which govern other traffic, and states:

"For practical purposes, speed is seldom, if ever, a factor in the preservation of a life. The excessive speed of ambulances has been shown to result in more traffic deaths than lives saved." The Myth of the Speeding Ambulance, Traffic Safety, a National Safety Council Publication, January 1960, p 43.

Without accepting this literally as a matter which may be legally admissible on trial, we refer to it as pointing up what is essentially a perilous situation. The due care required of plaintiff was that commensurate with the circumstances surrounding his entering the intersection; in other words, that care required of one who has undertaken a perilous task. The evidence does not sustain plaintiff's contention that a verdict should have been directed or that the finding of the jury is against the manifest weight of the evidence. It is a close case, however, and it is important that the trial should be substantially free of error. We will now consider the errors charged.

The most serious charge relates to the failure of defendant to answer fully an interrogatory filed by plaintiff which reads as follows:

"Q. What is the identity and location of all persons known to defendants, their attorney or other agents who have knowledge of relevant facts relating to the occurrence complained of in the complaint filed in this cause?"

Defendant's answer filed November 18, 1959 listed various persons including the following: "Mr. and Mrs. Coleman, address unknown." In a city like Chicago such an answer with respect to a witness otherwise unrelated to the case is the equivalent of no answer at all. There are hundreds of Colemans living in the city, as the telephone directory reveals. Upon the trial of the case, defendant produced Benjamin Coleman who, as we have hereinbefore stated, testified that when the ambulance entered the intersection of Lawrence and Western Avenues the light was red. When Coleman was first called, plaintiff objected to his testifying on the ground that he (plaintiff) had never been apprised of the location or address of Mr. and Mrs. Coleman. The court allowed plaintiff's counsel to question the witness as to when he was first contacted by defendant. The witness said it was in February 1959, the same month in which the accident occurred; that his sister-in-law was employed by defendant and that within ...


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