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Waldron v. Hardwick

SEPTEMBER 26, 1968.




Appeal from the Circuit Court of Coles County; the Hon. ROBERT F. COTTON, Judge, presiding. Reversed.


Rehearing denied October 25, 1968.

Defendant appeals from a judgment in the sum of $2,600, entered following a jury verdict. The trial court instructed the jury that the defendant was guilty of negligence as a matter of law, so that the only issues considered were proximate cause and plaintiff's freedom from contributory negligence. Defendant's post-trial motions were denied.

Issues raised upon this appeal include the question of error by the trial court in denying defendant's motion for a directed verdict at the close of plaintiff's evidence and at the close of all of the evidence.

The only testimony presented upon the issues of negligence and freedom from contributory negligence is that of the plaintiff and of the defendant. It may be said that neither party saw the other. At the place of collision, Highway 45 is a two-lane paved highway extending north and south. All of the evidence is that it is straight and open, with no obstruction to the view of either of the roadway, or its shoulders. The collision occurred at 10:00 o'clock a.m. The pavement is described as dry, and atmospheric visibility was good. Some distance south of the place of collision, described as a one-half mile or more, the highway has a slightly lower elevation forming a dip or depression, but, continuing south, there is a rise in the elevation. The testimony is that an automobile is not concealed by such depression as one looks south from the point of collision.

Defendant, testifying under section 60 of the Civil Practice Act, stated that she had turned onto the highway from an intersecting road about one-fourth mile south of the place of collision. Her customary route to her destination could not be followed by reason of construction on other highways not concerned here. Being required to plan a different route, she testified that she pulled clear of the roadway and onto the right-hand shoulder to determine her course of travel. This pause is described as being of a few seconds duration. She did not recall whether she had put her foot on the automobile brake while standing. Having determined a plan of travel, defendant testified that she looked to the rear by placing her head out of the window on the driver's side, and that she turned around and looked back. Although she could see a half mile or more, she saw no approaching vehicle. She then put her car into first gear and moved forward upon the shoulder some three car lengths of her 1955 Plymouth four-door sedan, and as her automobile was moving at about five miles per hour turned onto the pavement slab. She used no signal light, gave no arm signal and did not look into her rearview mirror during this movement. The collision occurred as her left front wheel got onto the highway. Her car was first struck just forward of the edge of the left front door.

Plaintiff's testimony is that she had commenced her journey around 6:00 o'clock a.m., and prior to the collision had travelled some 140 miles in her 1960 Valiant Sedan. She was accompanied by her daughter who did not testify, it being stated that she was attending college in Georgia at the date of the trial. In substance, plaintiff's testimony was that she was driving 60 to 65 miles an hour, that the highway was straight, level and the pavement dry, the visibility was good and that there was no obstruction of her view of the roadway, or of the shoulder. Her testimony, on direct examination, is that she did not see any vehicle as she approached the place of collision — that she first saw defendant's automobile a car length ahead, its front end then on the highway, and the collision immediately ensued. She stated that she did not apply her brakes, and nothing in the abstract suggests an attempt to move her car laterally. Damage to defendant's automobile was on the "left side of the front end." On cross-examination she testified that there was no obstacle to her view for at least a half mile as she approached the point of collision.

Defendant argues that the motion for directed verdict in favor of the defendant should be allowed where all of the evidence, viewed most favorable to the plaintiff, fails to establish an essential element of plaintiff's case. Carter v. Winter, 32 Ill.2d 275, 204 N.E.2d 755. Here, the argument is directed against the sufficiency of the evidence upon the issue of plaintiff's exercise of reasonable care for her own safety and freedom from contributory negligence. So far as the abstract discloses, the trial court made no statement of reasons for the ruling upon defendant's motion, but it appears that he had theretofore allowed plaintiff's motion to withdraw the issue of defendant's negligence from the jury, and to instruct the jury that the defendant was negligent as a matter of law.

The parties agree that the rule of Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504 and Keen v. Davis, 38 Ill.2d 280, 230 N.E.2d 859, is to be applied. In these opinions the Supreme Court determined that parties are entitled to a jury trial upon an issue where the evidence discloses a substantial factual dispute, but that verdicts ought to be directed and judgments n.o.v. ought to be entered by the trial court in those cases in which all of the evidence, viewed in the aspects most favorable to the party against whom the motion is directed, so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. This is true even though the record discloses "some evidence" in support of the position of the party against whom the motion is directed. The explicit purpose of the rule is to avoid new trials where, under the evidence, contrary verdicts would necessarily be set aside.

We consider the duty imposed upon the plaintiff under the authorities as to the issue of the exercise of ordinary care for her own safety. There is a common-law duty to be on the lookout for other automobiles moving or standing in the highway. Collins v. McMullin, 225 Ill. App. 430; Paul v. Garman, 310 Ill. App. 447, 34 N.E.2d 884; Bates v. DeBose, 14 Ill. App.2d 574, 145 N.E.2d 118.

A "highway" is defined:

"The entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public as a matter of right for purposes of vehicular ...

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