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Heep v. Mason

OCTOBER 7, 1968.

GEORGE HEEP, ET AL., PLAINTIFFS-APPELLANTS,

v.

FRANK MASON AND ELMER VITALIS, D/B/A VITALIS TRUCK LINES, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of LaSalle County, General Division; the Hon. JOHN S. MASSIEON, Judge, presiding. Judgment affirmed.

SCHEINEMAN, J.

On October 30, 1964, the plaintiff, George Heep, was driving his car eastward from Ottawa on Interstate Route 80, with Jane Etheridge, John Giordano and Pat Slingsby as passengers in a car pool. There was possibly some light fog, but visibility was good so they proceeded at 65 to 70 miles per hour. Earlier the fog had been much denser, causing a series of accidents, since they observed cars had gone off the road and there was debris visible.

As they approached the Marseilles exit, they were stopped by police because of a wreck ahead of them, which they were told had occurred during the heavy fog. The wreck was cleared away and after a half hour they were permitted to proceed. Heep started eastward again and observed the defendants' truck pulled out just behind him.

Visibility continued to be normal for a time, then they came into a patch of very dense fog where visibility was practically zero. Heep stopped his car on the pavement and Slingsby got out to direct him off to a parking place. Slingsby then heard the noise of a truck approaching from their rear, he shouted a warning to Heep, but it was too late and the defendants' truck crashed into the rear of the Heep car, knocking it about 30 to 40 feet off to the south, and the three persons in it suffered personal injuries, for which they brought this suit.

A jury found for the defendants, and the plaintiffs appealed, contending the verdict is contrary to the manifest weight of the evidence, that they should have received a directed verdict, and that the court erred in rulings on instructions.

According to the general trend of the various witnesses' testimony, the entry into the heavy fog was quite sudden and they had no previous knowledge or observation of this dense fog. They disagreed somewhat as to how far the Heep car traveled in the heavy fog before it stopped. Heep said a block or so, but admitted he had previously estimated 10 to 20 feet and had so stated in a deposition. He said he had changed his mind after thinking about the drive in a sheriff's car when he was injured and was taken to a hospital.

Heep said he had been driving 65 to 70 miles per hour until he hit the heavy fog, then he quickly reduced to 30 and that he then stopped. The visibility had been good prior to the sudden change.

The defendant, Mason, declared there was no warning of the fog. It was like having a blanket thrown over the windshield or like running into a wall. He was traveling about 30 miles per hour and estimated he had driven 30 to 40 feet in the dense fog when the collision occurred.

In view of the general agreement on the suddenness of the blotting out of visibility, we see no merit in the argument that the court should have directed a verdict for the plaintiffs. The same opaque condition which caused Heep to stop on the pavement existed also for the defendant, Mason, and this presented a jury question as to the conduct of Mason.

It was clearly a question for the jury whether the sudden change in the weather was to be blamed for the accident. It could not be said as a matter of law that Mason did not maintain a proper lookout, or had his truck under proper control.

It was somewhat hazardous to stop in the dense fog on the pavement, especially on that highway with its known heavy traffic and, of course, Heep knew the defendants' truck was behind him. Heep could not be expected to exercise perfect discretion in the emergency, but the same emergency existed for the defendant, Mason. The plaintiff called as a witness a driver of another car which had encountered the same conditions. This driver testified he pulled off the pavement, drove through the drainage area and up on the other side, stopping only when he could park along the fence line.

Under the conditions facing the defendant, Mason, as well as the plaintiff, Heep, it must be held that the verdict was within the scope of the evidence and that a new trial is not justified.

Although we consider the case presented questions of fact for decision by the jury, the appellants have attempted by the citation of numerous cases to make it appear that the case presented a question of law. They cite Hollis v. Mateika, 66 Ill. App.2d 267, 213 N.E.2d 409; Little v. Illinois Terminal R. Co., 320 Ill. App. 163, 50 N.E.2d 123; Johandes v. Chicago M. & St. P.R. Co., 260 Ill. App. 328; James v. Motor Transit Management Co., 260 Ill. App. 246, and Gilman v. Lee, 23 Ill. App.2d 61, 161 N.E.2d 586.

We do not consider any of these cases in point. These involved situations where a party had warning of a condition or had the opportunity to see an obstacle, which others did see, or other reasons not present in this case. We cannot ignore, nor hold that the jury ignore, the testimony that visibility had been good, then a heavy blanket of fog descended on the area, without warning. Nor can we ignore the evidence that the collision occurred a very short time after the advent of the fog, and before the ...


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