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Kinsch v. Di Vito Const. Co.

DECEMBER 14, 1964.




Appeal from the Circuit Court of Cook County; the Hon. THOMAS C. DONOVAN, Judge, presiding. Affirmed.


In this wrongful death action, plaintiff, Edward Kinsch, as administrator of his wife's estate, seeks to recover damages for himself and his two minor children. The jury, in response to a special interrogatory, found that the plaintiff had not exercised ordinary care or caution in the operation of his car in which his wife had been a passenger, and they returned a general verdict against defendant in the amount of $18,000. After post-trial motions were denied, a judgment was entered on the verdict.

Defendant, Di Vito Construction Company, contends in this appeal that it was entitled to a directed verdict or a judgment notwithstanding the verdict. In the alternative it is contended that the trial court erred in refusing to apportion the jury's award of general damages so as to eliminate the portion of the award made by the jury to the negligent widower as required by the express provisions of the Illinois Wrongful Death Act.

[1-3] The defendant principally contends that the negligent conduct of plaintiff constituted the sole proximate cause of the accident as a matter of law. For the purpose of passing on this question we must determine whether there was a complete absence of probative facts to support the conclusion of the jury that the defendant's conduct was a proximate cause of the injury. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847. In order for this court to determine, as a matter of law, that the defendant's conduct constitutes a passive condition rather than a contributing proximate cause, it must find that there can be no room for any other reasonable inference from the facts. Cohn v. Petroleum Heat & Power Co., 44 Ill. App.2d 23, 194 N.E.2d 29. In making these determinations this court does not weigh the evidence or consider its preponderance. Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855. We must, however, examine the evidence on this point in its aspect most favorable to the plaintiff together with all reasonable inferences. Johnson v. Skau, 33 Ill. App.2d 280, 179 N.E.2d 40.

At about 1:45 on the morning of October 16, 1956, Edward Kinsch, with his wife as a passenger, was driving east on Golf Road, a four lane highway. The weather was foggy and it became impossible for him to see more than five feet ahead although his headlights were on. He was travelling about 30 to 35 miles an hour when, he said, "I felt my wheels go off the cement onto the shoulder and all of a sudden, this huge object loomed in front of me and I hit it."

The "huge object" was a solid cement block called a head wall; it was 4 feet high, 8 or 10 feet wide and 8 inches thick and weighed about 10 tons. Witnesses for defendant testified that pursuant to a contract with the Sanitary District they were installing a sewerage system on the north side of Golf Road and were required to remove obstacles, including the head wall, from the sewer's path. Because there was no space for it on the north side of the road, the concrete block in question was removed by defendant to the south side of the highway until approval could be obtained from the State and Sanitary District that the ground had settled sufficiently to allow the concrete block to be moved back to its original position.

It is undisputed that this concrete wall had remained on the south side of the highway for about two to four weeks without any lighting and that on the date of the occurrence there were no signs on the highway warning drivers of its presence or of any construction in the vicinity. The shoulder of Golf Road at the point of this occurrence extended 10 feet from the edge of the pavement. The shoulder was graded level and there was no public lighting in the vicinity. As to the location of the cement block, the evidence is conflicting. Taking only the evidence favoring the plaintiff and excluding the prior allegedly inconsistent deposition evidence by one of the plaintiff's witnesses, we conclude that the cement block was on the shoulder, located approximately 3 to 4 feet from the edge of the pavement.

[4-6] Since the jury found that the plaintiff, Edward Kinsch, failed to exercise ordinary care or caution in the operation of his car, and that the defendant was also negligent, the question on liability which this case presents is whether the defendant's negligence was the proximate cause of the injuries. We think that for the purposes of this case the best statement of the law on proximate cause is contained in the Illinois Pattern Jury Instructions, which defines proximate cause as: . . . that cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury. (IPI No 15.01)

While the negligent act must be one of the essential causes producing the injury, it need not be the sole, last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury. Where the concurrent negligence of two persons causes an accident which would have been avoided, but for the negligence of either, the negligence of each is the proximate cause. Bernard v. Elgin, J. & E. Ry. Co., 34 Ill. App.2d 466, 181 N.E.2d 613, and cases there cited. Whether the injury follows in a natural or probable sequence from the acts in question is determined on the basis of whether an ordinarily prudent person ought to have foreseen that some injury might occur, although the precise injury which in fact occurred need not have been foreseen. Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497 and cases there cited.

[7-9] The question of proximate cause is normally an issue for the jury. Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74. We think that there is sufficient evidence to support the jury's conclusion that the defendant's negligence was the proximate cause of the injuries. It is common knowledge that careful drivers must occasionally use the shoulder of a road as a part of the public highway in emergency and other situations. We think that any prudent man would foresee that by placing a massive obstruction on the shoulder of a road within 3 or 4 feet of the edge of the roadway, without illuminating it or erecting signs warning of its presence, injury might result to those who, in emergency situations or otherwise, might stray from the roadway itself onto the shoulder.

The New York case of Smith v. State, 146 Misc. 336, 262 NYS 153 (affd 240 App. Div. 752, 265 NYS 981), is substantially similar to the case at bar. There the state left a heavy, unlighted tar kettle on the shoulder within 3 to 9 feet of the roadway. There the court stated:

While it is true that the shoulder of a road is not constructed as a place for vehicles to travel on, yet neither is it constructed as a parking place for the state's highway machinery or other unlighted obstacles for a traveler to collide with if perchance in the nighttime he should be compelled, temporarily, to resort to the shoulder of the road, when passing another vehicle, or for any other sufficient reason. . . . That the state was grossly negligent in the premises here is apparent, and, as it seems to us, beyond all controversy. There is absolutely no excuse for parking highway machinery so close to the traveled portion of the highway as to make such an accident as we are considering here possible. (262 NYS at 157)

The two Illinois cases on which the defendant relies because (in his words) of their "marked factual similarity to the case at bar" are distinguishable. In Crawford v. Central Illinois Public Service Co., 235 Ill. App. 339, the plaintiff drove over a curb and struck the defendant's utility pole which had been placed between 5 1/2 and 10 inches from the pavement. That case is not like the one at bar. It is much more likely, and hence more foreseeable, that drivers will stray onto the shoulder of a highway than that they will drive onto a parkway which is separated from the street by a curb. In Kennedy v. Burnett, 1 Ill. App.2d 206, 117 N.E.2d 303, the plaintiff struck the defendant's car which he had parked on the shoulder of the highway. The court affirmed a directed verdict for the defendant on the grounds that the defendant's action did not constitute negligence, because the court found that a view of the stopped vehicle was available from a distance of 200 feet in each direction. Because it did not find the defendant negligent, the court did not reach the issue of proximate cause.

The defendant next contends that the trial judge erred in refusing to reduce the verdict, which included a share for Edward Kinsch as a beneficiary, by deducting from the jury's gross verdict the percentage share thereof attributable to ...

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