Appeal from the Circuit Court of the Thirteenth Judicial
Circuit of LaSalle County; the Hon. WALTER DIXON, Judge,
presiding. Judgment adverse to plaintiff reversed with
Rehearing denied January 24, 1967.
This is an appeal from a judgment of the Circuit Court of LaSalle County, following action of the trial court in granting to defendant Masten Richmond, a judgment notwithstanding the verdict. The jury had returned a verdict for the plaintiff Martin N. Neurohr in the sum of $27,500. The jury had also answered a special interrogatory submitted by defendant on the question of contributory negligence to the effect that plaintiff was not guilty of contributory negligence. The basis of the allowance of the motion for judgment notwithstanding the verdict by the trial court was that plaintiff was contributorily negligent as a matter of law. The trial court denied defendant's alternative motion for a new trial.
On appeal in this court, plaintiff urges that the question of contributory negligence was one of fact for the jury. The defendant contends that the trial court properly set aside the verdict of the jury and the answer of the jury to the special interrogatory, and also asserts that the court should have allowed defendant's motion for a new trial on the ground that the verdict of the jury and the answer of the jury to the special interrogatory were against the manifest weight of the evidence. Defendant prays alternatively that if the judgment is not affirmed that this court remand the case for a new trial.
The record discloses that on a clear, sunny day at 9:30 a.m. defendant was driving his 1958 Oldsmobile in a southerly direction on a gravel road in Rutland Township, LaSalle County, Illinois, approaching an intersection. East-west traffic at the intersection was controlled by stop signs. The intersection was described as a "bad one" because of a hill just to the south of the intersection. The north-south road was 22 feet wide and the east-west road was 15 feet wide. It was indicated that defendant had a clear view in the direction in which he was driving for three quarters of a mile as he approached the intersection where his automobile collided with plaintiff's eastbound truck. It was shown that defendant had driven over the road many times and was familiar with the hill which crested approximately 100 feet south of the intersection.
Defendant testified that although he was looking at the road he did not see plaintiff's truck prior to the time of impact. Defendant asserted that it was his opinion that the impact occurred at the center of the intersection. Damage to defendant's car was on the right front and on the right side. The truck was struck at the left front wheel and was turned upside down on the west side of the road to the south of the intersection. Plaintiff was thrown out of the truck and was lying in the ditch with a broken right leg. Defendant estimated his speed at approximately 45 miles per hour although he did not know his exact speed. Defendant stated he did not have time to apply his brakes and was only 10 to 15 feet from the truck when he first noticed it. There were no skid marks on the road north of the point of impact and apparently the impact occurred just to the east of the center line of the northbound lane of the north-south road and in the eastbound lane of the east-west road.
Plaintiff testified that he was driving east on the east-west gravel road approaching the intersection. Because of the hill to the south of the intersection, he stated, it was difficult to see to the south at the intersection. He testified that he stopped a little past the stop sign and looked in both directions. He also testified that he observed defendant's southbound car about 300 feet down the road to the left (the north side of the road on which he was traveling) and "figured" that he had time to cross the intersection. He shifted gears and started to cross going five to ten miles an hour and keeping his eyes to the right due to the dangerous hill crest about 100 feet south of the intersection. At the time he looked to the left the defendant's car was between the first and second telephone poles on the east side of the road. There was some controversy as to how far this would have put defendant's car from the intersection (between 300 and 450 feet). Plaintiff apparently looked at defendant's car coming and after he had determined that he had time to cross ahead of such automobile he did not look again in the direction of the defendant's car but was watching the area to his right which he considered a more dangerous area from standpoint of traffic.
On a motion for judgment notwithstanding the verdict, the basic question raised is whether there is any evidence which taken in its aspects most favorable to the plaintiff, proved or tended to prove the cause of action (Moss v. Wagner, 27 Ill.2d 551, 190 N.E.2d 305 (on remand 44 Ill. App.2d 180, 194 N.E.2d 481); Guidani v. Cumerlato, 59 Ill. App.2d 13, 207 N.E.2d 1). On the basis of the record before us, it is obvious that the jury could properly have concluded that defendant was negligent. The next basic question is whether the trial court properly concluded that the plaintiff was guilty of contributory negligence as a matter of law. The record in this cause showed that plaintiff stopped for the stop sign. It also showed that he looked and seeing defendant's car either 300 or 450 feet away concluded that he could safely cross the intersection. Plaintiff could reasonably have concluded that other automobiles not yet visible behind a hill that crested about 100 feet south of the intersection (defendant's evidence indicated 258 feet) might have been closer to the intersection than was defendant's car. On appeal in this court, the appellee emphasizes that plaintiff did not again look to his left to see where defendant's automobile was and that this circumstance justified the conclusion of the court in granting the motion for judgment notwithstanding the verdict as a matter of law, on the theory that a "second look" was required.
[2-4] It is the duty of a trial court to determine as a matter of law whether or not there is any evidence, which, taken with its intendments most favorable to plaintiff, tends to establish that plaintiff was in the exercise of due care (Pennington v. McLean, 16 Ill.2d 577, 158 N.E.2d 624). If there is such evidence, the issue of due care is a question of fact for the jury. On the facts before us, whether the automobile driven by defendant was approaching the intersection so closely as to constitute an immediate hazard to plaintiff so that plaintiff should not have entered the intersection was a question of fact for the jury (Pennington v. McLean, supra; Emond v. Wertheimer Cattle Co., Inc., 19 Ill. App.2d 389, 153 N.E.2d 870). To assert that the plaintiff was guilty of contributory negligence as a matter of law for failure to look a second time is also inconsistent with precedents in this state (Quigley v. Crawford, 19 Ill. App.2d 454, 153 N.E.2d 867; Ritter v. Hatteberg, 14 Ill. App.2d 548, 145 N.E.2d 119; McDonald v. Stiner, 342 Ill. App. 651, 97 N.E.2d 573; Hamilton v. Family Record Plan, Inc., 71 Ill. App.2d 39, 217 N.E.2d 113). In Quigley v. Crawford, supra, the court determined that the question of contributory negligence was one for the jury when plaintiff looked in both directions when she was at a point 300 to 400 feet from the intersection and did not look again though if she had looked again she "could have seen the defendant's car." The precedents in this state have not arbitrarily concluded that a person about to enter the intersection would be guilty of contributory negligence if he did not take a "second look" or "third look," but such cases have consistently concluded that whether or not such person is guilty of contributory negligence was for the jury to determine. The jury might have concluded, under the facts before us, that a second look or a third look was required of plaintiff and if such was the jury's conclusion the court would not disturb it.
There was some discussion as to location of the stop sign and the distances involved at the intersection, none of which, on the basis of the record before us, do we consider conclusive or justifying the entry of the order for judgment notwithstanding the verdict. As stated in De Legge v. Karlsen, 17 Ill. App.2d 69, at 79, 149 N.E.2d 491:
". . . Defendant here exercised his judgment and `thought' there was sufficient time for him to cross the intersection. We cannot say that under the circumstances reasonable men would not differ as to whether his judgment was good or bad, therefore, it was for the jury to determine whether his judgment came up to the standard of the average man in the community.
"The conception that a motorist on a road protected by stop signs has the right of way over motorists on intersecting subordinate streets does not mean that the latter, having stopped at the stop sign, must refrain from crossing the favored street whenever another vehicle is approaching thereon, no matter how far distant.
". . . the motorist confronted by a stop sign may, exercising reasonable care, proceed over the crossing after he has stopped and yielded the right-of-way to such vehicles on the through road as constituted an `immediate hazard,' the question whether a particular vehicle constituted such a hazard in a particular case being one for the jury. . . ."
We must, therefore, conclude that under the record in this cause, the entry of the judgment notwithstanding the verdict was ...