Appeal from the Circuit Court of Williamson County, First
Judicial Circuit; the Hon. JOHN H. CLAYTON, Judge, presiding.
This is an appeal from a judgment for the defendant in an action for personal injuries and property damages due to the alleged negligence of the defendant, Gilbert Smothers, in the operation of his automobile which collided with the automobile of the plaintiff, Patricia Corder.
At approximately one p.m. on September 27, 1964, plaintiff had turned off DeYoung Street onto North State Street, a north-south residential street in the city of Marion, and was proceeding north on that street at a speed of 20 miles per hour, across its intersection with Illinois Avenue, intending to turn right into the driveway of the home of a friend who resided on the east side of North State, north of its intersection with Illinois Avenue. The defendant had also entered North State Street at DeYoung Street, and followed the plaintiff at a distance of 25 to 30 feet, at approximately the same speed. It was raining and the pavement was slippery; both cars were traveling in the right-hand lane of the two-lane street, and there were no other cars immediately ahead. At a point less than 100 feet north of Illinois Avenue, defendant slid into the rear of plaintiff's car, as plaintiff had started to make her turn, and had applied her brakes.
Plaintiff testified that she activated her right turn signal as she crossed the Illinois Avenue intersection, but stated on cross-examination that she activated the turn signal at approximately the same time as she applied the brakes, at a point about half the distance between the Illinois Avenue intersection and the driveway; the measured distance from the north side of Illinois Avenue to the south side of the driveway was 85 feet. She further testified that after the impact her car traveled approximately 25 feet and came to rest with the front end about even with the driveway. There was independent testimony that the point of impact was 18 to 27 feet south of the driveway. Plaintiff's husband testified that when he got into plaintiff's car to move it, after the collision, the turn indicator was on.
The defendant testified that he saw no turn signal, and that plaintiff's brake lights illuminated just as plaintiff got to the driveway, when he was 25 to 30 feet behind plaintiff's car, driving 20 to 25 miles per hour, that he applied his brakes as soon as plaintiff's brake lights came on and that his car left skid marks 10 to 15 feet long on the wet pavement.
Both parties testified that their views were unobstructed from the time they turned onto North State Street, for a distance of more than 700 feet. However, the plaintiff testified that as she passed the Illinois Avenue intersection before the driveway, she looked into her rearview mirror and saw no vehicles behind her. Upon collision, the front of the defendant's car struck the right rear bumper of the plaintiff's car. There was minimal damage to the plaintiff's automobile, however, as a result of the impact, the plaintiff's chest struck the steering wheel of her car. Upon these facts, some of them contradicted, the jury rendered a verdict for the defendant. The trial court entered judgment on the verdict, from which this appeal is taken.
The plaintiff alleges that the court erred in denying her post-trial motion for a judgment notwithstanding the verdict and her alternative post-trial motion for a new trial on the grounds that the verdict of the jury was contrary to the manifest weight of the evidence and that the court erred in instructing the jury.
Considering the alleged erroneous instruction first, the plaintiff argues that the court erred in giving defendant's Instruction No. 5, (IPI 60.01), which provided:
"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
"No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only . . . after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
"A signal of intention to turn right . . . shall be given during not less than the last 100 feet traveled by the vehicle immediately to the rear when there is opportunity to give such signal.
"Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device. . .
"If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence."
The plaintiff argues that the first two paragraphs of the cited statute are inapplicable to the facts of the case. She further argues that by giving the instruction the court permitted the jury to find that if the plaintiff failed to give a right turn signal during the last 100 feet before turning that she could be held to be guilty of contributory negligence. It is suggested by the plaintiff that the statute does not impose a duty on a driver to give a right turn signal during the last 100 feet when the driver is turning into a private driveway from the right lane of a two-lane highway if ...