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Lambdin v. Walter

JANUARY 22, 1968.

HAROLD R. LAMBDIN, AS EXECUTOR OF THE ESTATE OF ETHEL LAMBDIN, PLAINTIFF-APPELLEE,

v.

ARTHUR WALTER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. ROGER H. LITTLE, Judge, presiding. Affirmed.

TRAPP, J.

In this action for wrongful death, the defendant appeals from a judgment in the sum of $20,000, entered upon a jury verdict. The trial court denied defendant's post-trial motion in the alternative for a new trial, or for a remittitur upon the verdict. No issues are raised upon the pleadings or the instructions given in the trial court.

Issues argued on appeal are, (1) whether plaintiff met the burden of proof that defendant was negligent, (2) whether the plaintiff met the burden of proof upon the issue of decedent's due care, (3) whether the verdict in the sum of $20,000 was the result of passion and prejudice upon the part of the jury, and (4) whether such sum is excessive in view of the damages proven.

The collision at issue occurred in the forenoon of September 30, 1965, in the City of Urbana upon a highway designated as a part of Route 130, and also known as the Philo Road. Decedent, aged 73 years, was driving her Buick automobile with her daughter-in-law riding in the front seat, and her granddaughter riding in the rear seat. Defendant, aged 66, was driving in a southerly direction.

The evidence does not disclose the width of the travelled portion of the highway, but it is described as an asphalt pavement with shoulders composed of rock and dirt. The area closely adjacent to the point of the accident is built-up with residences, and the record discloses that approximately a quarter of a mile south of the point of collision, there is a public school of the City of Urbana, and roadside commercial establishments.

Philo Road proceeds in a north and south direction, but curves to the west. Upon this date there had been drizzling rain, and it is stated that there had been rain for two days preceding September 30th. The evidence discloses that at the curve there was mud or dirt upon the highway. In the record there is reference to construction work with an inference that mud was carried upon the highway. At another point, there is a suggestion that the mud had been washed across the highway. The curve was banked, but the degree thereof is not established.

The evidence discloses that decedent was driving in a northerly direction and was entirely upon her own travel lane. The only evidence of the speed of her vehicle is that it was travelling slowly. Decedent's car was described as being clear off of the highway and on the shoulder of the northbound lane after the collision, while defendant's automobile had spun and was partly across both lanes, apparently with its front facing northeast. The course of defendant's vehicle as it travelled south is established essentially by the testimony of an Urbana police officer concerning his observations made at the scene of the accident within a short time after the collision.

The officer testified as to certain tire or skid marks from defendant's car which extended from a point one and one-half feet in decedent's traffic lane northward for a distance of 82 feet. The officer described such skid marks as being in virtually a straight line, as distinguished from marks suggesting the turning of defendant's car to make the curve in Philo Road. The officer testified that from the northerly point where the tire marks were first observed, the vehicle travelled 50 feet upon the mud-free asphalt, and the tire marks continued 32 feet through the mud-covered asphalt, which was encompassed within the curve. The officer did, on cross-examination, describe the asphalt road as slick and the curve as slippery.

The police officer characterized the impact as a "terrific concussion" and stated that the undercarriages of both cars were damaged, as well as the wheels, so that they gouged areas in the northbound lane of asphalt. A photograph in evidence suggests that decedent's automobile was struck behind the left front wheel and ahead of the driver's side, and was badly bent and crushed inward.

Defendant, examined under section 60, answered "yes" to a question of whether or not he suddenly put on his brakes as he approached the curve. In testifying in his case in chief, he describes his driving as:

". . . I turned east and I saw another car facing me and I tried to brake immediately, but the road was a lot slippery (sic) and just kept right on going and wouldn't turn so I hit the other car."

Defendant testified that he had been driving some 100 miles to and through Urbana under conditions of drizzling rain.

As to the issue of decedent's freedom from contributory negligence, the record is uncontradicted that she was entirely within or upon her own travel lane and travelling at a reasonable rate of speed. We find nothing to suggest any conduct by decedent which could be considered contributory negligence and, in fact, defendant points out no evidence suggesting decedent's negligence. The testimony of decedent's daughter-in-law is corroborated by the testimony concerning the vehicle marks observed by the police officer.

Upon the issue of the sufficiency of the proof that defendant's negligence was the proximate cause of the collision, it is strenuously ...


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