Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Reversed and remanded with
ROETH, PRESIDING JUSTICE.
On April 5, 1957, plaintiff, a 16 year old boy, along with two other boys, were passengers in an automobile being driven by one Eugene Dalton. The boys were shopping for a used car for one of their group, not plaintiff, and drove to Rantoul from Champaign. On their return trip their car struck the rear end of defendant's truck, killing Dalton and injuring plaintiff, for which injuries he brings this suit. The lower court directed a verdict for the defendant at the close of plaintiff's case and judgment was entered thereon. Post trial motions filed by plaintiff were overruled by the lower court and plaintiff appeals.
The facts are for the most part undisputed and we consider those facts in a light most favorable to the plaintiff. When so considered, this appeal presents the narrow question of whether there is any evidence of negligence on the part of defendant. If at the close of plaintiff's case there was any evidence of negligence, a verdict should not have been directed by the trial court. It should be noted that the question of contributory negligence of the plaintiff is not involved in this appeal.
The defendant's truck was being operated by its employee, one Harry Northern, who along with another employee were driving south along the Leverett Road between Rantoul and Champaign inspecting telephone lines of the defendant company to see if they had been damaged by a recent storm. The Leverett Road is a paved highway 18 feet in width. At a point approximately 200 or 300 feet north of the place of the accident Northern stopped his truck to check a wire. He then continued on traveling between 7 and 10 miles per hour, both men apparently checking the lines as they drove. It was Northern's intention to travel at that speed for as he testified he would not be able to check the wires traveling any faster. In short, he was in the flow of traffic going at the speed intended and not intending to stop or increase his speed at the time of the accident. The left direction indicator light on the back of the truck was on, although Northern did not intend to turn left, nor, as previously stated, did he intend to stop. After Northern had proceeded south a short distance, an automobile driven by one Lora Avner pulled behind him. It appears that she was traveling at about 50 to 55 miles per hour, saw the truck, noted the left indicator light was on and pulled up behind it. At this time the automobile in which plaintiff was riding in the rear seat behind the driver, approached the Avner automobile and defendant's truck. The truck was not visible to plaintiff, being concealed by the Avner automobile. The Avner car slowly pulled out from behind the truck, first ascertaining if the road was clear, and as it pulled out the rear of the truck was exposed to plaintiff for the first time. The Dalton car, traveling between 60 and 65 miles per hour, also pulled into the left lane for the purpose of passing the vehicle ahead. Avner testified that as she was abreast of the defendant's truck she noted the Dalton car coming up behind her in the left or passing lane and that she then turned back in the right lane in front of the truck as soon as possible. Plaintiff testified that he did not see the blinking light but that he saw a car approaching going north in the same lane the Dalton automobile was then traveling. The Dalton automobile suddenly swung back toward the right lane, and the shoulder and ditch on the right side of the pavement and in so doing struck the right rear dual wheels of the truck and went crashing across the shoulder injuring plaintiff and killing Dalton.
In his complaint plaintiff charges the defendant with negligence alleging that defendant violated the provisions of Section 51 and Section 113 of the Uniform Act regulating traffic on the highway (Chap 95 1/2, Sec 148 and Sec 210(b), Smith Hurd Ill Rev St). These sections read as follows:
"148. Sec 51. Minimum speed regulation:
(a) No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.
"210. Sec 113. Special restrictions on lamps.
(b) Flashing lights are prohibited on motor vehicles, except as a means for indicating a right or left turn or stop. . . ."
The legislature changed each section since the accident herein, giving, in substance, to the Department of Highways the right to set certain minimum speeds at certain places and added to Sec 113 a provision whereby a flashing light could be used as a warning of some unusual hazard to passing, approaching or overtaking vehicles. Neither change affects the decision in this case.
The lower court in finding for defendant held there was no evidence of negligence on the part of the defendant and that there was no showing of negligence that proximately caused the accident.
Plaintiff contends the question of proximate cause is one for the jury and that the violation of the aforementioned sections of the statute are prima facie evidence of negligence and it was therefore error not to submit the case to the jury.
Considering first, the contention of plaintiff that the evidence of the flashing of the left directional signal was a violation of the statute under the circumstances here present and as such was prima facie negligence, we find the record barren of any evidence that the driver of the automobile in which plaintiff was riding saw this signal. The fact that he drove to the left lane to pass raises a reasonable inference that he did not see this signal. In addition plaintiff testified positively that he did not see it. Under these circumstances, even conceding that violation of the statute was prima facie negligence, the violation of this statute becomes immaterial since there is no connection shown between the violation and the occurrence. On the contrary the reasonable inference is that it was the presence of the oncoming automobile that prompted the driver to abruptly turn toward the right shoulder and ditch.
Cases involving the "slow speed" statute are sparse and no Illinois case interpreting this statute has been called to the court's attention. Defendant cites Sumner v. Griswold, 338 Ill. App. 190, 86 N.E.2d 844, and Hogrefe v. Johnson, 271 Ill. App. 469. The former case did not consider the statute and ...