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Clayton v. Bellatti

MAY 9, 1966.

ELLA MAE CLAYTON, PLAINTIFF-APPELLEE,

v.

MARGARET BELLATTI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Morgan County; the Hon. HOWARD LEE WHITE, Judge, presiding. Reversed and remanded.

TRAPP, P.J.

Defendant appeals from a judgment entered upon the verdict of a jury in the sum of $5000. Her post-trial motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial, was denied.

Plaintiff's theory of the case is that the slowly moving automobile driven by her in a westerly direction was struck from the rear at the time when she was intending to turn left into a private drive with her left turn signal operating, but had not yet moved from the north lane, i.e., the west bound lane of travel, across the center line into and across the south lane, i.e., the eastbound lane of travel.

It is defendant's contention that the plaintiff had executed a left turn into the driveway to the extent that her automobile was about one-half across the center lane so that the plaintiff's car was in both the west and eastbound lanes of traffic; that defendant swerved her car to the right to avoid a collision with plaintiff's car as it was in such position, so that the left front fender of defendant's car struck the left rear corner of plaintiff's.

It is defendant's theory that under the facts in evidence, the verdict was against the manifest weight of the evidence and that the plaintiff was guilty of contributory negligence as a matter of law, in that the plaintiff was making a left turn when it was not safe so to do, in violation of chap 95 1/2, § 162 (Ill Rev Stats 1961), and that by reason of mud and dirt covering them, the signal lamps of plaintiff's car were not visible for 100 feet to the rear, in violation of chap 95 1/2, § 206 (Ill Rev Stats 1961).

A review of the Abstract discloses that the testimony presented in behalf of the respective parties is irreconcilable, and that such evidence as is submitted through disinterested parties is ambiguous when one seeks to interpret it.

The complaint, as amended, contains no allegations which suggest that the making of a left turn over the highway was involved. In substance it is alleged that the defendant was driving too fast, contrary to the statute; that she failed to yield the right-of-way, contrary to the statute; that she failed to keep a proper lookout; and that she was following the car of the plaintiff too closely. All such allegations were denied.

As to the evidence relating to the making of a left turn, plaintiff testified to driving in a westerly direction to the home of her sister, and that as she approached the drive into the home, she intended to make a left turn and activated the automobile's signal for a left turn; that she saw the car approaching from the rear in the rearview mirror and did not turn from her westbound lane of travel prior to the time of the collision. The witness, Vaniter, a sister of plaintiff and riding in the right front seat, testified in practically identical terms. It appears that this witness was sitting in the front seat at such angle that she could see defendant's car approaching from the rear. These witnesses testified that the plaintiff's car was travelling at a speed of about 20 miles per hour and that defendant's car was approaching at a speed of about 45 miles per hour.

The defendant's testimony is that she was overtaking plaintiff's car while travelling at about 30 miles per hour and that as she was within two car lengths of the former it made a left turn across the center line so that it was broadside across the road; that when she observed the turning movement she swerved her car to the right and applied the brakes so that she was travelling about 5 miles per hour at the time of the impact, and the left front fender struck the left rear of plaintiff's car.

Witness Heyer, then a member of the State Police, was called to the scene of the collision. He had no recollection of debris or skid marks upon the highway indicative of the point of impact. His testimony was that the plaintiff, in discussing the collision, stated that she was:

"Attempting a left turn into this house and she was struck from the rear,"

while the defendant had stated that she:

"Was attempting to pass a slow moving automobile."

It appears to us that the testimony of each of the parties is contradicted by their reported statements. The witness, Fay, the partner of defendant's husband, who was called to the scene of the accident, testified that he ...


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