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Luker v. Contract Steel Carriers

DECEMBER 16, 1968.

ICLE LUKER, ADMINISTRATOR OF THE ESTATE OF JOHN BURKEY LUKER, DECEASED, PLAINTIFF-APPELLEE,

v.

CONTRACT STEEL CARRIERS, INC., A FOREIGN CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of LaSalle County; the Hon. HOWARD RYAN, Judge, presiding. Affirmed.

ALLOY, P.J.

Icle Luker, as administrator of the estate of John Burkey Luker, deceased, filed a wrongful death action seeking damages as a result of the death of her intestate husband, John Burkey Luker, against Contract Steel Carriers, Inc. The action was the result of a collision of two trucks on Interstate 80 on May 22, 1964. The truck which the decedent John Luker was driving struck the rear of a truck driven by a Frank McCollum, an employee of defendant, Contract Steel Carriers, Inc. McCollum died approximately two years following the accident from other causes and there was, therefore, no testimony in the cause from him. Investigating officers, however, reported the description of events prior to the accident given to them by McCollum. This indicated that McCollum had pulled off Route I 80 at the Utica exit to check his tires as required by company rules. He then pulled back onto I 80 at the Utica entrance and proceeded on west. The accident occurred 3/4 of a mile west of where the Utica entrance blends in with I 80. The grade of the road in this area is downward as it runs west. The truck driven by McCollum was carrying steel and the truck and the load together weighed approximately 70,000 pounds.

John Luker, the deceased husband of the plaintiff administrator, was driving out of Chicago in a cattle truck which was empty. He had met a friend, a Mr. Lansing at the stockyards and they were driving back toward New Windsor, Illinois, in separate trucks yet close enough so they could see each other. Lansing testified that both men lay down and rested for about three hours in Chicago. They left Chicago about 1:30 o'clock a.m. They stopped for breakfast, and stopped again at the intersection of Route 66 and I 80. Luker was in the lead as they turned onto Route I 80 and then, on an upgrade, Lansing passed him. About 2 1/2 miles from the Utica overpass Lansing stopped his truck to check his tires and when Luker came up behind Lansing, Luker slowed down. Lansing waved Luker on through as there was no problem with his tires. Lansing then pulled back on the road and Luker was still within his view. After Luker passed Lansing, Luker had on his right turn signal and pulled into the north lane of Route I 80 going west. Lansing then followed Luker's truck under the Utica overpass and Lansing was about 1/2 mile behind Luker.

Lansing testified as to what occurred at this moment which was about 4:30 or 4:45 a.m. It is the only direct testimony as to what occurred. He stated: "At the overpass Luker was about a half mile ahead of me. He was then in the right-hand lane. His motion up to that time was straight-on. I at no time saw a unit proceeding westward ahead of Luker. As I was coming down the grade, all of a sudden the trailer lights on Luker's truck went off. It hit me that something had happened. I kind of slowed down. When I got close enough I could see there was a wreck. I could see all this dust, material laying all over the highway, scattered everyplace. After leaving the overpass the road bends a little to the northwest then it comes back more to the west and it's downhill. The accident was about a mile from the Utica overpass. It is still going downgrade there. The first thing I saw was Luker's unit, the rear of his trailer, clean in the south lane. The tractor was just on the edge of the south lane. The front of the tractor was just a little bit off of the south lane. I saw this as I was pulling up to where the accident was. I then saw the steel truck. I saw it in motion trying to get off on the shoulder. It didn't get off before it came to a halt."

The cab portion of the Luker truck was a total loss and the damage to the McCollum truck was confined to the left rear portion of the truck. Luker's body was thrown from the truck and came to rest to the north side of the pavement. The rear tandem of the trailer was pulled out of the box and the trailer was heaved up. Lansing testified that he noticed some skid marks leading up to the Luker unit, which marks were in a southwest direction from the north lane of Route I 80. He also stated that these skid marks started about 50 feet behind where the Luker unit came to rest after the accident. He also noted that there were black marks on the north lane from what appeared to be the point of impact, and that these marks ran to the McCollum truck. Lansing testified that most of the debris was along the side of Luker's trailer. Lansing testified that Luker's truck had a speed governor which limited Luker's speed to 54 or 55 miles per hour and that in his opinion Luker was traveling 52 to 53 miles per hour at the time of the accident. Lansing also testified that he had observed Luker drive on numerous occasions and that Luker was a really good driver, observing the rules and regulations very well. On cross-examination Lansing testified that as he approached the scene of the accident, he had his lights on high beam and he could observe the Luker truck about 500 feet away. The lights of the Luker truck were then off following the collision, but Lansing testified he could still see the Luker truck. Lansing testified that the lights on the right side of the McCollum truck were on when he arrived but the lights on the left side were off as they were damaged by the accident. Lansing said that if it had not been for the dust created by the accident he could have seen the two trucks about 700 to 800 feet away. Lansing stated that he had no idea as to the movements or actions of the McCollum truck before the accident as he did not see it prior to the accident.

The two police officers who investigated the accident also testified. Trooper Niles was the first on the scene. He found the Luker truck with the cab nose down in the median between the east and west portion of I 80 and the rear of the trailer was in the south lane of westbound I 80. Niles requested McCollum to move his steel carrying truck off the road to avoid a traffic tie-up. Niles testified that he could find no skid marks to indicate that brakes were applied on either vehicle prior to the accident. The debris and marks on the highway started on the north lane and carried over into the south or passing lane according to Niles. Niles testified that he had investigated over 100 accidents and that from his experience he was able to form an opinion as to the point of impact. He testified that in his opinion, the impact occurred in the north or right-hand lane of traffic. In referring to photographs of the accident scene, Niles said the point of impact was in the center of the north lane in what is called the driving lane. On cross-examination he stated that most of the staining, the saturated area, and the black marks were south of the center line. Robert Current, the other officer, told of the position of the two trucks when he arrived, which was after McCollum had moved his truck. Current testified that he had investigated over 200 accidents and from observing the debris, tire marks, and other evidence, he was of the opinion that the point of impact was in the extreme north lane in the westbound lane, in the north half of the highway. He testified as to seeing tire marks in the north lane running into the south lane leading up to where the Luker truck came to rest. He felt the McCollum truck left marks when its springs broke and locked up the rear end. He testified that the oil marks were clearly on the south side of the center line.

The complaint filed by the plaintiff charged the defendant with a number of acts of negligence including failure to keep a lookout, stopping a vehicle on a highway so as to obstruct westbound traffic, defective taillights, turning in front of plaintiff without signaling, failing to yield the right of way, and, also, carelessly operating a vehicle at such slow speed as to impede and obstruct traffic approaching the rear in violation of the statute (1963 Ill Rev Stats, c 95 1/2, § 148, par 51, sub par (a)). Two instructions were given at the request of plaintiff and objected to by the defendant. The instructions were as follows:

Instruction 15: "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 drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation of his vehicle or in compliance with law.'"

Instruction 71: "The plaintiff, as administrator of the estate of John Burkey Luker, deceased, claims that she, as widow, and the lineal next of kin of said decedent, sustained damages while said decedent was exercising ordinary care and that the defendant was negligent in one or more of the following respects:

"`1. Negligently managed, operated and controlled defendant's motor vehicle so as to cause the motor vehicle being then driven by plaintiff's intestate to run into and strike the motor vehicle of defendant.

"`2. Drove and operated defendant's motor vehicle at such a slow rate of speed so as to impede and block the normal and reasonable movement of traffic approaching from the rear, in violation of Section 148, paragraph 51, ...


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