Appeal from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding. Reversed.
Rehearing denied March 24, 1964.
This case arises from a three car collision on Illinois Route No. 67, near Godfrey, Illinois, on May 19, 1961. The point of collision was near the south end of the Monticello Plaza Shopping Center. Immediately north of the shopping center there is a bank, a filling station and a church. From the church to a driveway entering the shopping center at the south is a distance of about 650 feet. The highway is four laned pavement. The time was about 6:30 p.m., but it was still daylight, pavement was dry and the weather good. All three cars were headed southwardly. At the time of the collision, the Martin car was in the inside southbound lane and stopped. The Henderson car overtaking the Martin car, had been in the outside southbound lane, but had crossed over to the inside lane. The Henderson car collided with the right rear of the Martin car, and then crossed over into the outside southbound lane where it (the Henderson car) was hit by the Wooff car.
In the beginning, there were two suits, one by Harold A. Wooff against both Henderson and Martin, and one by Mildred Wooff against both Henderson and Martin. The causes were consolidated and tried before a jury. The jury returned a verdict finding in favor of the plaintiffs and against the defendants, Allen Henderson and Thomas Martin, assessing Mildred Wooff's damages at $17,000 and Harold Wooff's damages at $6,500. Defendant Thomas Martin's post-trial motion was denied and judgment entered on the verdicts. Martin appeals. Henderson does not appeal.
The appellant contends on appeal that if there was any negligence on his part shown by the evidence, it was not the proximate cause of the plaintiff's injuries, that the verdicts were against the manifest weight of the evidence and that the trial court erred in giving Plaintiff's Instruction No. 4. Determination of the first two of appellant's contentions must depend upon the evidence.
The Martin car had turned into the inside lane about 600 feet north of the point of collision, and stayed in it to the place where he stopped to make a left hand turn into the shopping center. Martin and his wife both testified he put on his turn lights, had his brake on and came to a gradual stop. He was waiting for northbound traffic to pass so that he could cross the northbound lanes into the shopping center. Both estimate they waited one minute for northbound traffic to pass. Both say the turn indicator was clicking while he was waiting. After the accident, State Trooper Files appeared on the scene to investigate the accident. Files testified he asked Martin to turn on his turn indicator and that Martin did not answer. That he turned them on and they were working. Martin apparently did not hear the request to turn on the turn indicator, and did not respond in any way. Mrs. Martin says she heard the request. Later, Sergeant Wilson Schultz of the State Police came up. Schultz knew the Martins and tested the Martin car to see if it was safe to drive. He tested the turn indicator and said it was working. He found the Martin car unsafe to drive and drove them home in his car. Schultz' testimony is in sharp conflict with that of Files. Schultz testified he talked with Files some time after the accident and asked Files whether he had checked the signal lights and Files did not remember. Files admitted that it was customary to note on his report whether the signal lights were working but that he did not do so. Files denied talking with Schultz after the accident. Files admitted on cross examination that two or three weeks before the trial he had stated he did not remember about checking the lights, but did remember it about two days before the trial when talking with the attorney for the plaintiffs.
Henderson testified he saw a truck just off the pavement, about 100 feet north of the entrance to the shopping center. He then pulled into the passing or inside lane and then first observed the Martin car about 100 feet in front of him. He estimated the speed of the Martin car at about 2 or 3 miles per hour. He saw no brake or turning lights. He was driving 40-45 miles per hour. Proceeding south in the inside lane he was within two car lengths of the Martin car when it dawned on him that Martin was going slower than he thought. He then swerved back to the outside lane but couldn't cut back in time and his left front caught Martin's right rear. After the collision with the Martin car, his car was stopped three or four seconds before the impact of the Watts car.
Loretta Watts, driver of the Wooff car, is the daughter of the plaintiffs. She first saw Henderson when he was in the inside lane, she being about a car length behind him and in the outside lane. She estimated the speed of Henderson's car and her own at 40 to 45 miles per hour. She did not see the Henderson car hit the Martin car. She did not know how far Henderson was from her when he began to swing over into the outside lane. She put on her brakes, but her car hit the left side of the Henderson car. On deposition, this witness testified that when she first saw the Martin car it looked like it was stopped, and that she could not say whether Martin had any signal lights on. At the trial, she changed her testimony somewhat to say that when she first saw the Martin car she could not be sure whether it was moving or stationary and that she did not see any signal lights. Mildred Wooff did not see either the Martin car or the Henderson car.
In the trial of the case, it seems there was considerable emphasis on whether Martin had his turn lights on while waiting to turn. This court cannot see where this is important. If Martin had attempted to turn and the collision had occurred while he was making the turn or, as a result of his turning, the question of whether his turn lights were working or were on, would be important. Here, he had stopped to make a turn. He was sitting still, waiting for northbound traffic to pass, so that he could make the turn. He had made no effort to turn. While sitting still, in the proper lane for a turn, he was struck from behind by Henderson. It would seem to be of little consequence as to whether he had signaled for a turn, was signaling for a turn, or had not signaled, if, in fact, he was not turning or had turned before the accident. The turning or not turning of the Martin car did not cause the accident.
It may be argued that Martin had no right to stop his car on the inside lane or to slow his car just before the entrance; that he was driving too slow just before the accident. Yet both Martin and his wife testify he came to a gradual stop and waited at least a minute for northbound traffic to clear. While a minute was the estimate and may be too long a time, yet it seems clear that if their testimony is to be believed, the Martin car was stopped for a difinite period of time before being struck in the rear. The answer to this argument is that Martin was where he had a right to be. He had stopped as he had a right to do. He had stopped because he could not cross the northbound lanes in the face of northbound traffic. Martin had performed every duty and taken every precaution a reasonable person would be or could be expected to do and take, under the circumstances. Yet, the jury found that he was negligent, and returned a verdict agaist him and Henderson. Unquestionably, on the testimony, Henderson was guilty of negligence. The question of negligence on the part of Martin must rest upon the assumption that he set into motion a chain of circumstances which caused the accident. Or, in other words, that the actions of Martin were the proximate cause of the injuries to Wooff and his wife.
Appellant relies upon the case of Walker v. Illinois Commercial Tel. Co., 315 Ill. App. 553, 43 N.E.2d 412, and the plaintiffs rely upon Schiff v. Oak Park Cleaners and Dyers, 9 Ill. App.2d 1, 132 N.E.2d 416, Ney v. Yellow Cab Co., 2 Ill. 74, 117 N.E.2d 74, and Cardona v. Toczydlowski, 35 Ill. App.2d 11, 18 N.E.2d 709. The Walker case involved the parking of a telephone company truck with pole trailer on a street so as to obstruct the vision of drivers approaching an intersection. A collision occurred and Walker sued the other driver and the telephone company, and obtained judgment against both. The court in that case held that although the initial act of negligence may be the occasion for an intervening cause which intervenes and produced the injury, the intervening cause will be held to be the proximate cause of the injury unless the intervening is within the control of the party responsible for the initial act. And the court said that the truck being there, at that particular time, did nothing more than furnish a condition by which the injury to the plaintiff was made possible.
The position of the plaintiffs is that proximate cause is a question of fact for the jury. Citing Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74. The Ney case is cited with approval by Schiff v. Oak Park Cleaners & Dyers, 9 Ill. App.2d 1, 132 N.E.2d 416. In that case the parked truck of the defendant was held to be the proximate cause of injury to a child by the automobile of a third party. The court in the Ney case said:
"Where an independent agency intervenes, the solution of the problem becomes aggravated. The rules are without substantial contradiction and are universally applicable, but their practical application yields varying and contradictory results. In Neering v. Illinois Central Railroad Co., 383 Ill. 366, we stated: `What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act.'"
The case of Cardona v. Toczydlowski, 35 Ill. App.2d 11, 18 N.E.2d 709, follows the holding of the Ney and Schiff cases that the determination of proximate cause is a fact question for the jury, but followed the rule laid down in the Walker case that if the negligence charged did nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause, which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause. That the cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. And the court in that case held further that the intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was, itself, probable or foreseeable. Citing Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401. And the court in that case cited Merlo v. Public Service Co. of ...