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Tuohey v. Yellow Cab Co.

FEBRUARY 9, 1962.

JOHN R. TUOHEY, APPELLANT,

v.

YELLOW CAB COMPANY, A CORPORATION, AND JAMES MARSHALL, APPELLEES.



Appeal from the Municipal Court of Chicago; the Hon. JOSEPH H. POWER, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Plaintiff, John R. Tuohey, appeals from an adverse summary judgment entered in his personal injury suit. Acting upon the pleadings, plaintiff's deposition, his answers to interrogatories and defendants' affidavits, all on file and in the record, the trial court found plaintiff guilty of contributory negligence as a matter of law.

[1-3] As plaintiff filed no counter affidavits, the only question presented is whether the undisputed facts are susceptible of a single inference and, therefore, present a question of law. (Inland Steel Co. v. Industrial Commission (1959), 18 Ill.2d 70, 78, 163 N.E.2d 489.) Questions composed of factors sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 84, 117 N.E.2d 74.) If the court was correct in its finding of plaintiff's contributory negligence, and there was "no genuine issue as to any material fact," defendants were entitled to a judgment as a matter of law. Civil Practice Act, § 57 (3).

Plaintiff's deposition shows that on August 17, 1958, a dry and sunny day, at 8:10 in the morning, while plaintiff was driving west on Marquette Road, Chicago, defendant's southbound cab collided with plaintiff's vehicle in the intersection of Marquette Road and Minerva Avenue. There were no westbound cars in front of plaintiff, no eastbound cars coming toward him, and there were no vehicles parked on Marquette Road at or near the intersection. Plaintiff was traveling at a speed of 20 miles per hour and did not decrease his speed as he approached the intersection or as he entered it; he kept his foot on the accelerator pedal up to the moment of impact and did not apply his brakes. At no time prior to, or at the moment of impact, did plaintiff see defendant's cab. He had "no knowledge" of an impending accident. The first he knew of the collision was "when I got up off the floor" after being "momentarily dazed." Until the police arrived and informed him, he knew nothing about defendant's cab being the other vehicle involved in the collision.

In a summary judgment proceeding, the right of the moving party should be free from doubt, and toward this end the supporting affidavits are to be construed most strongly against the movant, and the whole record must be considered. (J.J. Brown Co., Inc. v. J.L. Simmons Co. (1954), 2 Ill. App.2d 132, 135, 118 N.E.2d 781.) If, upon an examination of the pleadings, depositions, and affidavits, it can be fairly said that a material dispute exists as to the facts, a motion for summary judgment should be denied. On the other hand, where the record shows there is no triable issue of fact, a summary judgment will be granted. People ex rel. Sharp v. City of Chicago (1958), 13 Ill.2d 157, 161, 148 N.E.2d 481.

Plaintiff argues and cites cases which are predicated on a showing in the record that the driver in question, when approaching a crossing or intersection, in some measure looked for approaching vehicles on the intersecting street. It is unnecessary for us to discuss these cases, because the instant record contains nothing from which it can be reasonably inferred that plaintiff, when approaching the intersection of Minerva Avenue, looked to determine the presence of any vehicles on Minerva Avenue, approaching or otherwise.

Plaintiff relies heavily on Simaitis v. Thrash (1960), 25 Ill. App.2d 340, 166 N.E.2d 306. We are not persuaded that the facts in that case are comparable. There was evidence that plaintiff looked for other cars before entering the intersection. The court found that the evidence was conflicting and contradictory concerning the speed of defendant's automobile and whether plaintiff entered the intersection first. There are no similar facts shown in this appeal.

Plaintiff had an opportunity to file counter affidavits, in which he could have stated facts to show that he looked for or observed approaching vehicles on Minerva Avenue. (Otis Elevator Co. v. American Surety Co. for New York (1942), 314 Ill. App. 479, 484, 41 N.E.2d 987.) If plaintiff was in possession of such evidence, it was incumbent upon him to file counter affidavits showing that he had a defense to defendants' claim of contributory negligence, and the trial court was not permitted to surmise or speculate in the absence of counter affidavits. Harrell v. Summers (1961), 32 Ill. App.2d 358, 361, 178 N.E.2d 133; Killian v. Welfare Engineering Co. (1946), 328 Ill. App. 375, 381, 66 N.E.2d 305.

All reasonable minds will agree that a driver approaching an intersection, who fails to look as he approaches, to ascertain whether there are other cars in proximity, especially those which might have the right of way over him, is guilty of want of ordinary care or contributory negligence. Crowe Name Plate & Mfg. Co. v. Dammerich (1935), 279 Ill. App. 103, 108; Zielinski v. Pleason (1939), 299 Ill. App. 594, 598, 20 N.E.2d 620; Lawson v. Jorjorian (1938), 293 Ill. App. 431, 435, 12 N.E.2d 894.

It is undisputed that plaintiff did not slow down as he approached the intersection in question nor make any attempt to apply the brakes. In the absence of anything in the record to show that plaintiff looked for approaching vehicles on Minerva Avenue as he approached or entered the intersection, we conclude that plaintiff failed to exercise due care and was guilty of contributory negligence as a matter of law. In the absence of a triable issue of fact, the summary judgment was properly granted. Harrell v. Summers, 32 Ill. App.2d 358, 361, 178 N.E.2d 133.

For the reasons given, the judgment is affirmed.

Affirmed.

ENGLISH, J., ...


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