Appeal from the Circuit Court of Cook County; the Hon. WILBERT
F. CROWLEY, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a personal injury action in which defendant, Ford Motor Company, appeals from judgments entered on jury verdicts in favor of plaintiffs (Graf, $2,500, and Green, $15,000), who were injured while passengers in an automobile driven by defendant's agent. The basic issue is whether there was sufficient evidence to support the verdicts.
On appeal, defendant's theory is: 1. The sole proximate cause of plaintiffs' alleged injuries was the sudden and unexpected conduct of a third party, and no act or omission of defendant's agent causally contributed to the accident. 2. The trial court erred in denying defendant's motion for directed verdict and its motion for judgment notwithstanding the verdict, as: (a) No act or omission of defendant was the proximate cause of the alleged injuries of the plaintiffs. (b) The evidence established without contradiction that defendant was not guilty of any act or omission or negligent failure to act charged against it by the plaintiffs. (c) The doctrine of "last clear chance" did not apply to this case or these facts. 3. That, in any event, the trial court erred in denying defendant's motion for a new trial because the verdict of the jury was contrary to the manifest weight of the evidence.
On March 19, 1960, at about 8:30 a.m., plaintiffs, Henry A. Graf and Alvin Green, were passengers in a Ford station wagon driven by defendant's employee, James Bruns. They were proceeding northbound on highway 77, about seven miles south of Marietta, Oklahoma, when a southbound vehicle came across the highway into the northbound lane and struck the left side of the Ford "broadside." The scene of the occurrence was just north of a railroad trestle under which the highway passed in an "S" curve fashion. The vehicle in which plaintiffs were passengers was part of a cavalcade show, and it was the lead car. The highway was of cement, with one lane for northbound vehicles and one lane for southbound vehicles. The width of the paved portion of the highway was 24 feet. Adjacent to each driving lane was a gravel shoulder about seven or eight feet wide. The posted speed limit was 35 m.p.h., with a warning to slow down for the "S" curve.
The oncoming southbound vehicle was sighted as the Ford station wagon came from underneath the railroad trestle. The oncoming vehicle, a Pontiac driven by Julia Stevens, was first sighted by plaintiff Graf 700 to 800 feet away and by plaintiff Green 900 to 1,000 feet away, and by the defendant driver, James Bruns, 300 to 400 feet away. The speed of the oncoming southbound Pontiac was estimated at 40 to 45 miles an hour by plaintiff Green, at 60 to 65 miles an hour by Howard Bernard, a passenger in the Pontiac, at 70 miles an hour by defendant driver, James Bruns, and at 70 miles an hour by the investigating police officer.
The speed of defendant's northbound Ford was variously estimated at 60 to 65 miles an hour by plaintiff Green, at 30 miles an hour by the defendant driver, Bruns, and at 50 miles an hour by the investigating police officer.
The oncoming southbound car was first observed going off the road and on to its own right-hand shoulder four or five times, with the estimated distance of 200 to 300 feet by plaintiff Graf and 150 to 200 feet as stated by plaintiff Green.
The next observed action of the oncoming car was that it slid "broadside" for a distance estimated at 100 to 150 feet by plaintiff Graf and 150 to 200 feet by plaintiff Green. While skidding sideways, the Pontiac struck a guard rail post located 10 feet off the road on its own (west) shoulder, at a time when the distance between the approaching vehicles was between 250 and 300 feet according to plaintiff Green and by plaintiff Graf to be 90 to 100 feet. The Pontiac bounced off the guard rail and came across the highway at a 45° angle, so that the front of the oncoming Pontiac struck the left side of the Ford "broadside." The distance from the post to the point of collision was estimated by plaintiff Green to be 15 to 20 feet, and the Pontiac was traveling about 45 miles per hour.
The investigating police officer measured 178 feet of tire marks from the southbound Pontiac from the point of the sheared off guard rail post, traveling along the shoulder and turning to the left abruptly at a diagonal across the road. The distance from where these tire marks came back on the paved portion of the highway at the point of impact was 16 feet.
Plaintiff Alvin Green testified that he was sitting in the front seat next to the driver and looking out the front window. As they passed the railroad trestle, "I said to the driver, `Look at that car. It is weaving.' And he said, `I see it.'" At that time they were about "three blocks, three and a half blocks" or "900 to a thousand feet" from the other car. A few minutes before the occurrence, he had looked at the speedometer and they were going about 60 to 65 miles per hour, and the driver maintained it. He also noticed that just before the railroad trestle there was a posted speed sign, and "it said thirty-five, or slow down to thirty-five or forty miles an hour." The oncoming car "hit the guard rail and bounced off the guard rail, I would say about a forty-five degree angle, and hit us broadside on our left side." It was "eight to ten seconds" from the time he first saw the oncoming car until the time of the impact, and at that time the speed of the car in which he was riding was "about sixty to sixty-five," and they were in the paved portion of "our side of the lane." Their car rolled "about 150, 200 feet, and then back on its wheels again . . . a complete cycle over." On cross-examination, Green said that the oncoming car must have been going 45 to 50 miles an hour.
The driver, James Bruns, testified that as they approached the area of occurrence, there was a 40 miles per hour sign, and as they approached the sign his speed had been "around fifty or fifty-five miles per hour. When I arrived at the sign I slowed up. The curve took you under the railroad track. . . . As I was going into the final portion of the S curve I noticed this Pontiac coming around the curve from the north about 300 to 400 feet away. When I first saw the car, it was traveling at a high rate of speed, having difficulty in negotiating the curve, and the car gradually went off the road on the opposite side of the highway from me, traveled down the shoulder of the road and as it traveled it tended to go into a side skid; eventually the car hit a guard post alongside the road. At that point the car veered off the guard post to sort of ricochet off the guard post, and came across the highway then directly toward me. It came directly into the side of our car; . . . . A couple of seconds elapsed from the time this Pontiac struck the post until the collision with my car occurred. Prior to the collision I had slowed down somewhat, by taking my foot off the gas. Also I had moved over in the highway to my right. From the time I first saw the southbound Pontiac until the time of the collision I was never over on the left side of the center of that highway. I was never over the center line. At the point of the impact I was close to having my right hand wheels off the main highway." On cross-examination, he said, "When I saw this Pontiac go off the highway I took my foot off the gas. I would estimate my speed around thirty miles an hour. From the time I first saw this Pontiac until the time of the collision was around three to five seconds. . . . I estimated the speed of the Pontiac at seventy miles an hour prior to the accident."
Defendant argues that there was an absence of any evidence, together with all reasonable inferences taken therefrom, tending to support the material allegations of plaintiffs' complaint, and therefore it was the duty of the trial court to grant defendant's motion for a directed verdict. Defendant's citations include Oklahoma Natural Gas Co. v. McKee, 121 F.2d 583 (1941); Malone v. Chicago Transit Authority, 76 Ill. App.2d 451, 222 N.E.2d 93 (1966); and Sjostrom v. Sproule, 34 Ill. App.2d 338, 181 N.E.2d 379 (1962).
Defendant relies principally on Malone v. Chicago Transit Authority, where a car made a sudden turn in front of defendant's bus, in which plaintiff was riding as a passenger. There this court said (p 454):
"There is no testimony from which it can be reasonably inferred that the driver failed to exercise due care. `The mere fact that an accident resulting in an injury to a person or in damage to property has occurred does not authorize a ...