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Carter v. Winter

JULY 30, 1964.

RAYMOND CARTER AND MARY CARTER, PLAINTIFFS, RAYMOND CARTER, PLAINTIFF-APPELLEE,

v.

ZULA WINTER A/K/A MRS. A.E. WINTER, AND THERESA O. HOENOW, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Sangamon County; the Hon. DeWITT S. CROW, Judge, presiding. Reversed. REYNOLDS, J.

This is a personal injury action growing out of a collision between an automobile driven by defendant Theresa Hoenow and owned by defendant Zula Winter, and an automobile driven by plaintiff Raymond Carter. The accident occurred on December 18, 1960, at about 3:00 o'clock p.m. on U.S. Route No. 66, a short distance north of Springfield, Illinois. The weather was clear and cold, and the pavement was dry. The highway at the point of collision is four-laned, each lane being 10 feet in width, with two lanes for northbound traffic and two lanes for southbound traffic. There is no curb, or separation of the two inner lanes other than a center line on the pavement. The highway is concrete.

Raymond Carter, with his wife in the front seat with him and their small child standing behind them, started from his home which is a short distance east of the highway, and drove his automobile on a private driveway until he came to U.S. 66. His testimony and that of his wife was, that he stopped just before he entered the highway, then drove directly across the two northbound lanes, and the inner lane of the southbound lane, until he entered the outer southbound lane and there he turned to the left and proceeded down the outside southbound lane at a speed of about 35 miles per hour until he was struck in the rear by the Winter automobile. The left rear corner of Carter's automobile was struck by the right front corner of the Winter automobile. The collision knocked the Carter automobile down the road until it was braked to a stop by the driver. The Winter automobile stopped about the point of impact. Carter said he saw the Winter car when he was about 30 feet east of U.S. 66. He estimated it was then about 400 yards to the north. At that point, he drove across the three lanes of the highway, and then turned south, in the outer southbound lane. He estimated the speed of the Winter car at 75 or 80 miles per hour. He said he continued to watch the Winter car as he drove across U.S. 66 and until he made his turn and headed south. His estimate was that he traveled 120 to 130 feet in the southbound lane until the collision. On cross-examination, he admitted that he last saw the Winter car through the right front door at a distance of about 30 to 40 yards away. Mrs. Carter in her testimony estimated the Winter car to be three to four hundred yards away when the Carter car stopped on the east side of the highway. Mrs. Carter testified she was knocked out for a few seconds and when she regained consciousness, she was sitting in the front seat with Mr. Carter sitting beside her holding to the steering wheel. Mrs. Carter was not seriously injured and apparently the child in the back was not injured. Raymond Carter, immediately after the accident went across the highway to his brother Luke Carter's home to get his brother and then went back to the scene of the accident. Then Raymond Carter, Luke Carter, Mrs. Raymond Carter and the little boy went to the Luke Carter home. Neither Raymond Carter, his wife or his son went to the hospital. The next day, Raymond Carter returned to his regular work in the mill of Luke Carter. The next day he drove the mill truck to Arkansas and was gone about four days. About a week after the accident, he helped rope and load a 200 pound hog in the truck. On the 11th day after the accident plaintiff Raymond Carter had a heart attack and while in the hospital had several strokes which resulted in partial paralysis and total disability. Plaintiff's action was based on the claim that the injuries sustained in the collision caused the heart attack.

The cause was tried before a jury and the jury found for the plaintiff and assessed his damages at $100,000. Defendants' post-trial motion being denied, defendants appeal to this court.

On appeal defendants raise the following points: — (1) There was no credible evidence of negligence on the part of the defendants, (2) Plaintiff was guilty of contributory negligence, (3) There was no competent evidence of causal connection between the accident and plaintiff's heart attack and disablement, and (4) The trial court committed prejudicial error in refusing Defendant's Instruction No. 15.

Defendant Theresa Hoenow, an employee of Zula Winter, was driving the Winter car. Riding beside her in the front seat was Mrs. Winter's brother, Ellsworth Brown. Mrs. Winter was in the back seat, but her eyesight was such that she was almost totally blind and could not see what was happening. Both Mrs. Hoenow and Mr. Brown estimated the speed of the Winter car at 50-55 miles per hour before the brakes were applied. Mrs. Hoenow testified she first saw the Carter car when it was crossing the inner southbound lane. She estimated the distance at between 100 and 125 feet. She attempted to pull to the left but was unable to do so and when the collision occurred, the Winter car was straddling the dividing line between the two southbound lanes.

Mr. Ellsworth Brown, testified he first saw the Carter car when it was crossing the two inner lanes. It was then about 100 to 125 feet away. This witness testified that the Carter car came across the two lanes and then turned into the lane in which the Winter car was traveling south. This witness stated he had observed the posted speed limits from time to time and Mrs. Hoenow was driving within the speed limits.

Illinois State Highway Policeman James Merrifield was called to the scene of the accident and arrived shortly after it happened. He testified he found skid marks made by the Cadillac of Mrs. Winter and these marks were 112 feet in length. He stated the point of impact was 169 feet south of the line of the Carter driveway extended across the highway.

Luke Carter, brother of the plaintiff, testified he saw the Winter automobile 1000 feet away, watched it and his brother's car, and saw the accident. He saw this through a window, seated about two feet from the window. He estimated the speed of the Winter car at 80 miles per hour. He estimated the speed of the Carter car just before the collision at 35 miles per hour. Although Luke Carter testified he saw the accident, it does not appear that he left the house, but stayed inside until his brother came back across the road to enlist his help.

Alexander Langsdorf, a witness for the plaintiff, testified as an expert on the coefficient of friction between tires and dry concrete pavement, or in other words, skid marks and their distances. This witness was asked a long, involved and complicated hypothetical question and his testimony was that under the facts as posed by the hypothetical question the accident could not have happened, basing his answer on the testimony of Mrs. Hoenow that at the time of the collision she was traveling 30 miles per hour and the testimony of Mr. Carter that he was traveling 35 miles per hour. This witness stated that if the speed of the Cadillac was 70 miles per hour, the speed of the Cadillac at the time of impact would have been 47 miles an hour which would have caused a mild jolt. Basing his answer on a speed of 80 miles per hour by the Cadillac the speed of the Cadillac at the time of the collision would have been 60 miles per hour. This witness also testified that if a person driving along the highway is struck in the rear by another vehicle, the person so struck would be thrown forward and not backward.

George Engelbach, a transport driver, testified he was driving north on U.S. 66 and saw the accident. He was driving in the outer northbound lane. He first saw the Carter car come from behind a fence on the east side of the highway and said it did not stop, but seemed to pick up speed as it entered the highway. That the Carter car slanted across the highway in a southwesterly direction. This witness estimated the distance of the Cadillac from the Carter Mercury at 50 feet when the Mercury crossed the center of the highway. This witness stated the Cadillac was not exceeding the speed limit. When the witness stopped his transport, he was within 200 feet of the point of impact of the two vehicles. He was near the Carter driveway. This witness stated unequivocally that Carter did not stop before entering the highway, but that he seemed to be picking up speed, and that Carter was slanting across the highway to the southwest. He showed wet tire marks of the Carter car to the state trooper.

Dr. Leon Lando, a general practitioner, was the attending physician when Carter was admitted to the hospital on December 29, 1960. He found no outward evidence of any injury to Carter and based on subjective symptoms, concluded Carter had suffered an acute coronary occlusion. When first admitted, Carter did not tell Dr. Lando about the alleged chest injury, but did so later. The doctor's conclusion, based upon the statement of Carter that he was thrown with great force against the steering wheel, was that there could or may have been a causal relationship between the injury to his chest wall and the following coronary occlusion. Dr. Lando is not a heart specialist, and later called in Dr. Chauncey Maher as a heart specialist on the case.

Dr. John J. Meyer, a doctor of general and traumatic surgery, examined Carter in June 1963, two and one-half years after his first heart attack. This witness, based upon the story that Carter was thrown against the steering wheel, testified that there was a possibility that there was a connection between the alleged chest injury and the heart attack. On cross-examination when asked if he could say that the heart attack was caused by the accident, said that "All I can say is that I can't say it wasn't." Questioned if the connection was a probability, the witness would not answer, except to qualify his answer, that without examining the subject at the time of the injury he could not say.

Dr. Alton Joseph Morris, testified as to three possibilities. First, there could have been a direct injury to the heart muscle, Second, there could have been a direct injury to the blood vessels of the heart or the coronary arteries, and Third, coincidental occurrence. The first two possibilities were based upon the story of Carter being thrown against the steering wheel. On cross-examination, this doctor said that based upon such an injury, the heart attack could have been connected with the injury. That such connection was a possibility, but he was not excluding the possibility that the heart attack was totally unrelated to the accident. This witness had not treated or examined Mr. Carter.

Dr. Thomas J. Walsh, asked a hypothetical question based upon a person being thrown against the steering wheel of an automobile and a subsequent heart attack some 11 days later, stated there may, or could have been, a relationship between the trauma to his chest wall and the subsequent cardiac problem. This witness admitted that there was the ...


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