Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.
Plaintiff Everett Caviness brought this action against defendant James Hamblen seeking to recover damages for personal injuries which resulted when plaintiff was struck by an automobile driven by defendant. Plaintiff charged defendant with simple negligence and wanton and gross negligence in his complaint.
The district court entered an order granting defendant's motion for a directed verdict as to the wanton and gross negligence count. The jury returned a verdict for defendant on the negligence count. Judgment was entered for defendant. Plaintiff's motion for a new trial was denied. From this judgment, plaintiff appealed.
On Friday, September 5, 19598 at approximately 7:30 P.M., plaintiff, a pedestrian, was struck by a car driven by defendant. The weather was clear and dry. It was turning from dusk to dark.
The accident occurred north of where Illinois Route No. 176 crosses over U.S. Route No. 41. At that point U.S. 41 extends north and south and Illinois 176 extends east and west and passes over U.S. 41 by means of a bridge. U.S. 41 dips about 15 feet as it goes under the bridge.
At the scene of the accident U.S. 41 has three northbound lanes and three southbound lanes. Each lane is approximately 12 feet wide. The northbound lanes are separated from the southbound lanes by a center grass parkway.
North of the bridge and on each side of U.S. 41 were two buildings, each containing a combination gas station and restaurant. The gas station and restaurant on the east side were owned and operated by plaintiff's brother and the business on the west side by plaintiff's sister. Plaintiff was at his brother's place of business on the east side of the highway.
A sign adjacent to the highway near the brother's station and restaurant prohibited pedestrians from crossing the highway at that point. The permitted place for pedestrians to cross was a cloverleaf near Illinois 176.
At the time of the accident traffic on U.S. 41 was medium in both directions. It was dark enough that automobiles had their headlights on, yet there was enough light to permit the visibility of the parkway in the center of U.S. 41.
At the trial, the testimony was conflicting as to events leading to the accident.
Defendant testified to the following. Defendant was driving his automobile in a northerly direction on U.S. 41 in the far right hand (easternmost) lane. As he ascended from the bottom of the dip beneath the Illinois 176 bridge, he was traveling between 50 and 55 miles per hour with the headlights on. At the bottom of the dip he could see to the top of the hill but could not see over the crest.
Part way up the hill defendant saw plaintiff, who was just beginning to step out onto the east side of the northbound lanes. Plaintiff appeared to be 300 to 400 feet away and was walking at a medium pace while looking in a southerly direction. Seeing plaintiff on the highway, defendant began decelerating and easing his automobile into the middle northbound lane.
Plaintiff reached the line dividing the easternmost lane from the center lane, stopped and again looked to the south. By that time most of defendant's car was in the center lane and plaintiff was 200 feet away. Noting that plaintiff had stopped, defendant assumed that plaintiff would let him pass, so defendant began turning into the lane nearest the parkway and away from plaintiff. However, instead of remaining at a standstill, plaintiff suddenly started walking west. When well into the center lane and about 100 feet from defendant's vehicle, plaintiff began to run west toward the center parkway. Defendant jammed on his brakes and the right front of his automobile struck plaintiff.
At the time of impact, defendant's speed was between 20 and 30 miles per hour and plaintiff was still on the highway, at ...