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Vierke v. Sunset Valley Creamery Co.

APRIL 14, 1965.

GEORGE W. VIERKE AND MYRTLE VIERKE, PLAINTIFFS-APPELLANTS,

v.

SUNSET VALLEY CREAMERY COMPANY, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 19, 1965.

This is an appeal from a judgment in favor of the defendant entered upon a jury verdict. The complaint consisted of two counts. The first count, on behalf of George W. Vierke, charged defendant with both negligence and willful and wanton conduct in the operation of its truck; the second count was on behalf of Myrtle Vierke for loss of consortium. We will refer to George W. Vierke as "plaintiff."

Plaintiff contends that the verdict is contrary to the manifest weight of the evidence and is palpably erroneous for the following reasons: defendant's driver was negligent as a matter of law; the refusal to give plaintiff's proffered right of way instruction had the effect of directing a verdict against plaintiff on the issue of contributory negligence; and the denial of recovery for the injuries sustained by plaintiff "indicts the verdict."

The collision occurred at the intersection of 68th Street and Western Avenue in Chicago between 11:30 a.m. and noon on June 6, 1958. It was uncontroverted that the day was fair, the pavement dry and the visibility good; that plaintiff was driving his car eastbound on 68th Street and that defendant's truck was proceeding north on Western Avenue; that Western Avenue had six lanes: three for northbound traffic, three for southbound traffic (the two curb lanes were used for parking).

Plaintiff testified that:

As I approached Western Avenue heading eastbound on 68th Street, I stopped at the sidewalk line in front of the cars. I knew that the sign was down because I passed there every day. After making my stop, I pulled out from the northbound traffic going south [sic], and I stopped at the curb line. I made two stops there, and there were no cars. The light was on the red at 67th Street, so I proceeded to the middle of 68th Street or [sic] Western Avenue to the yellow line. Then I stopped there.

When I stopped the third time, half of my car was across the yellow center line of Western Avenue, and half of my car was still in the southbound lane nearest the center of Western Avenue.

Plaintiff testified that when he first stopped he could see two trucks proceeding north on Western Avenue; that when he stopped a second time the two trucks were "quite a ways down, half a block. I would estimate their speeds at about thirty-five, forty miles"; that when he stopped the third time the trucks "were down about forty feet"; that at this time defendant's truck attempted to pass the other truck by pulling into the west or inner northbound lane which was "the lane in which my car was standing." Plaintiff further testified that after defendant's truck driver saw him the driver tried to cut back into the center lane by going east, to his right; that at the time of impact defendant "was still going about forty miles an hour" while "my car was standing still." Plaintiff testified that the "right fender was the first part of my car that was hit"; and that "my automobile did not run into the side of the truck."

Defendant's truck driver, Ray Bonnell, testified that:

In the block before this accident, I was going about thirty miles an hour. . . .

At no time did I leave the center northbound lane before the time of this accident. At the time of the accident I was in the center lane going north. As to whether there was another truck proceeding north just ahead before this accident, not that I remember. The first knowledge I had of this accident was when Mr. Vierke hit me. The right-hand corner of his car hit the side door of the cab of the truck.

With respect to whether Mr. Vierke was standing still or moving at the time of the impact, he was moving. He must have been. I know this because he hit me and I did not hit him. If I would have hit him, I would have hit him with my ...


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