Major, Senior Circuit Judge, and Hastings and Cummings, Circuit Judges.
MAJOR, Senior Circuit Judge.
This appeal is from a judgment entered in a diversity action pursuant to a jury verdict awarding damages to plaintiff for injuries sustained as a result of an automobile collision allegedly due to defendant's negligence. Plaintiff at the time was a guest passenger in a car driven by her husband.
The contested issues are that the court erred (1) in its failure to instruct the jury regarding the duty of plaintiff to wear a seat belt as bearing upon due care to avoid injury and to mitigate damages, and (2) in its denial of defendant's motion, appropriately made, for a directed verdict.
We shall first dispose of the second issue, that is, that the court erred in denying defendant's motion for a directed verdict. In this connection it is pertinent to note that mere negligence of plaintiff's driver would not have been sufficient to absolve defendant of liability. Such negligence would have been sufficient only if it had been the sole proximate cause of the collision. This was recognized by the trial court when it instructed the jury that before they could find in favor of defendant and against plaintiff, they must believe that "the accident in question was due solely to the negligence of a third person and not through any negligence on the part of the defendant."
It hardly seems necessary to cite cases in support of the universal rule that in determining whether an appropriate jury question was presented we must consider the record in the light most favorable to plaintiff. As was aptly stated in Ralston Purina Co. v. Parsons Feed and Farm Supply, Inc., 8 Cir., 364 F.2d 57, 59:
"Our function as a reviewing court is to consider the evidence in the light most favorable to the prevailing party and we must assume that all conflicts in evidence were resolved by the jury in favor of the prevailing party." (Citing cases.)
With this premise in mind, we think an abbreviated statement of the facts will suffice. On September 11, 1966, plaintiff was riding in the front seat of an automobile driven by her husband. They were headed in an easterly direction on Route 15 near Mt. Carmel, Illinois, when they collided with an automobile driven by Louis Pilcher, who was not made a party to this action. The evidence is without dispute that at the time of the collision the car driven by Lentz was properly equipped with two sets of seat safety belts for the front seat, as required by Illinois law, but that the belts were not being used by either Lentz or plaintiff. Approaching the Lentz car and traveling west was a car driven by defendant Schafer, followed by a car driven by Pilcher.
The Lentz car was traveling approximately sixty miles per hour over a hilly, narrow highway. As it approached the place of the collision it proceeded down a hill to a dip and then ascended a steep slope in the highway. At the time Lentz ascended the hill he could not see over the top but he had previously seen and knew that cars were approaching from the opposite direction.
Defendant testified that as he proceeded west he intended to make a left turn into a driveway located near the top of the hill. He slowed down, signaled for the turn and traveled across the south portion of the highway occupied by Lentz. Defendant failed to see the approaching car of Lentz, and Lentz in order to avoid a collision with defendant's car made a quick turn to the left and collided with the Pilcher car which had been following Schafer.
There was evidence that the collision between the Lentz and Pilcher cars occurred almost straight across from the driveway into which Schafer had turned, and that the collision happened instantly after the Schafer car made a sharp left turn.
As shown by the court's instructions, both Lentz and defendant claimed negligence on the part of the other for failure to comply with certain provisions of the Illinois Statutes pertaining to motor vehicles. Defendant claimed that Lentz was negligent in driving at a speed greater than reasonable and proper considering the highway terrain, and Lentz claimed that defendant was negligent in not yielding the right-of-way to a vehicle approaching from the opposite direction.
Even though the factual situation is confusing, we hold that a jury question was presented and that the court did not err in its refusal to direct a verdict in favor of defendant. Any negligence on the part of the driver of the Lentz car was not imputable to plaintiff, a passenger, and would not bar her right to recover unless it was the sole proximate cause of the collision.
Now turning to the seat belt phase of the case, defendant tendered his instruction No. 5 in the language of the Illinois Statutes ...