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Deaver v. Hickox

MARCH 25, 1970.

ALTHEA DEAVER, EXECUTOR OF THE WILL OF PHILIP F. DEAVER, DECEASED, AND ALTHEA DEAVER, ADMINISTRATOR OF THE ESTATE OF LESTER M. SAMPLES, DECEASED, AND ALTHEA DEAVER, PLAINTIFF-APPELLEE,

v.

RONALD HICKOX, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. ROGER H. LITTLE, Judge, presiding. Reversed and remanded with directions.

TRAPP, J.

This case was reviewed as Deaver v. Hickox, 81 Ill. App.2d 79, 224 N.E.2d 468, and remanded for a new trial because of error in admitting certain purported expert testimony. Upon the new trial the jury verdict was for the defendant. The trial court, however, entered judgment non obstante veredicto upon the issue of liability and ordered a new trial upon the issue of damages only. The trial court further conditioned such judgment non obstante veredicto by granting plaintiffs a new trial in the event that such judgment was reversed. Leave to appeal was denied in this Court.

Upon the issue of damages only judgments were entered in the sums of $30,000 for the death of Deaver, and $2,500 for the death of Samples. Defendant appeals.

The decedent, Philip Deaver, with decedent, Lester M. Samples, as a passenger, was driving south on an oiled road approaching the unprotected intersection with an east and west road on which defendant, Ronald Hickox, was travelling in an easterly direction. The intersection was in defendant's neighborhood and he was familiar with it. The northwest corner of the intersection was occupied by standing corn, about five and one-half feet high.

There were no competent eyewitnesses to the accident. Proof was made of the careful driving habits of the decedent, Deaver. While there is no direct evidence as to the careful habits of the decedent, Samples, there is, we believe, sufficient evidence to go to the jury upon the issue of the due care of Samples under the rule of Klatt v. Commonwealth Edison Co., 33 Ill.2d 481, 211 N.E.2d 720, and Lobravico v. Checker Taxi Co., Inc., 84 Ill. App.2d 20, 228 N.E.2d 196.

Defendant's automobile left 39 feet of skid marks immediately prior to the impact, and struck the Deaver's car at about the middle of the intersection. The Deaver's car was pushed into the field in the southwest corner of the intersection and came to rest on its top. Defendant's car came to rest facing northwesterly in the southeast corner of the intersection.

The front end of defendant's car was pushed back about a foot and the right side of the Deaver's car was pushed in about a foot and a half in the area of the right front door.

A witness which the trial court found to be qualified as a reconstruction expert testified to an opinion that each vehicle was travelling at a speed of approximately 20 miles per hour at the time of impact. As a further opinion related to the evidence, the skid marks placed the speed of defendant's car at about 32 miles an hour before its brakes were applied.

The issue is whether the trial court properly set aside the finding of the jury upon the issue of liability. We have examined with care the trial court's memorandum filed when entering judgment non obstante veredicto with the alternative order granting a new trial. He determined that defendant was negligent as a matter of law in approaching an intersection at the speed in evidence when the view was known to him to be hidden by the growing corn. He concluded that the plaintiffs' decedents were in the exercise of ordinary care for their own safety upon the evidence of habits of due care of the deceased driver, Deaver, and the fact that each of the decedents was wearing seat belts.

The court erred in concluding that the wearing of seat belts was competent evidence of due care in the operation of the automobile in which Samples and Deaver were riding. In Mount v. McClellan, 91 Ill. App.2d 1, 234 N.E.2d 329, it is said:

"Whether a person has or has not availed himself of the use of seat belts would have no relevancy in determining the cause of an accident,"

and continues to say that the use of seat belts is not to be considered by the trier of fact in determining the issue of liability. In this case liability and freedom from contributory negligence are equivalent issues for the trier of fact.

Upon consideration of the evidence of the use of seat belts and of the habits of due care, the trial court concluded that the ...


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