APPEAL from the Circuit Court of Peoria County; the Hon.
CHARLES IBEN, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Plaintiff-Appellant, Marilyn Schmidt, executrix of the estate of David Schmidt and mother and next friend of Douglas Schmidt, a minor, commenced this action in the Circuit Court of Peoria County to recover damages for the wrongful death of David Schmidt and for personal injuries sustained by Douglas Schmidt resulting from the alleged negligence of Barry Blackwell, Carl James and Rogers Cartage Company, Appellee, all original defendants in the present action. Prior to trial, plaintiff's motion to dismiss defendant Blackwell was granted, and at the close of plaintiff's evidence, the court granted plaintiff's motion to dismiss defendant Carl James. The jury returned a verdict in favor of defendant Rogers Cartage Company, the court entered judgment thereon, and it is from this judgment plaintiff appeals.
The action arose as a result of a collision between an automobile driven by the deceased, David Schmidt and an automobile driven by Blackwell. The Schmidt automobile was traveling in an easterly direction on Route 150, a two lane highway about two miles west of Kickapoo. The automobile operated by Blackwell with six passengers was traveling in a westerly direction on the same highway. Blackwell reached a downhill slope which was broken midway by what the parties call a crest, making it impossible to see the bottom of the hill. The passengers in his vehicle had complained of his fast driving after leaving Kickapoo. On the downhill slope he approached the truck driven by James, an employee of defendant, Rogers Cartage Company, also traveling west in the westbound lane. In spite of a no passing zone, Blackwell drove his car into the eastbound lane in order to pass the truck. The Schmidt automobile was in a blindspot as it proceeded easterly up the hill. James had seen the Schmidt car shortly before it became obscured by the crest of the hill. When Schmidt suddenly saw Blackwell's car he applied his brakes and veered toward the shoulder of his lane; nevertheless, the left front side of the Schmidt car collided with the front of Blackwell's car. David Schmidt died in the car shortly thereafter.
According to plaintiff's complaint, Rogers Cartage by and through its agent and employee, Carl James, negligently operated the truck and such conduct was a proximate cause of damage suffered by plaintiff. It is alleged the truck prevented the Blackwell vehicle from passing it successfully and from returning to the westbound lane. Specifically the complaint alleges the truck was driven at a speed in excess of the speed limit, failed to decrease speed at a hillcrest and increased speed while being passed by a car to the left, all in violation of the Motor Vehicle Code. Ill. Rev. Stat. 1971, ch. 95 1/2, par. 11-601 and par. 11-703.
At the trial conflicting evidence was presented in reference to the speed of the truck and also in reference to the position of the truck in relation to the point of impact, although it was undisputed that the cars collided in the eastbound lane somewhere behind the cab of the truck. Defendant rested at the close of plaintiff's evidence having presented no evidence in his own behalf, at which time the court denied plaintiff's motion for a directed verdict on the issue of liability.
• 1 On this appeal plaintiff's first contention is the trial court erred in refusing to direct a verdict for plaintiff and in failing to grant his motion for judgment notwithstanding the verdict, citing the standard set forth in Pedrick v. Peoria & Eastern Railroad Co., 37 Ill.2d 494, 229 N.E.2d 504, as authority. The rule according to Pedrick is verdicts should be directed and judgments non obstante verdicto entered only in those cases where all of the evidence viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could stand. Plaintiff in his brief appears to review the evidence only in its aspect most favorable to himself. Looking at all the evidence in its aspect most favorable to defendant, we cannot say defendant as a matter of law was guilty of negligence which proximately caused the collision.
The evidence relating to the speed of the truck was based on speculation with most of plaintiff's witnesses not sure if the truck was moving faster than fifty miles per hour, the maximum speed limit for the truck. Blackwell testified when he passed the truck it increased speed one or two miles per hour. Also, there is no proof that had the truck been going slower, the Blackwell car could have returned to the westbound lane before the impact. The two automobiles were visible to each other for approximately only two seconds before the impact occurred. One witness, who was a passenger in the Blackwell automobile, said the truck didn't alter its course because there was no time. All the witnesses appear to agree that it all happened very fast, that is, within a matter of seconds.
• 2 The evidence concerning where the collision occurred in relation to the truck is conflicting since the truck was not struck by either automobile nor did it come to a stop until it was 300 to 400 feet down the road. Due to the uncontradicted testimony that Blackwell was passing the truck in a no passing zone in the eastbound lane and did not see the Schmidt vehicle until two seconds before the collision, it is possible that a jury could conclude no matter what the truck had done, the collision would nevertheless have occurred. Having reviewed this evidence in its aspect most favorable to defendant, we are of the opinion that a directed verdict was properly refused since it cannot be said that the evidence so overwhelmingly favors plaintiff that no contrary verdict could ever stand.
Plaintiff next assigns error to instructing the jury on contributory negligence. The instructions submitted were defendant's instructions Number 4 and Number 8 patterned from IPI 2d 10.03 and IPI 2d 11.01, reading as follows:
"It was the duty of the plaintiffs, before and at the time of the occurrence, to use ordinary care for their own safety. That means it was the duty of the plaintiffs to be free from contributory negligence.
When I use the expression `contributory negligence', I mean negligence on the part of the plaintiffs' decedent that proximately contributed to cause the alleged injury."
Plaintiff's objection was that there was no evidence of contributory negligence. While we agree that no evidence of failure of decedent or of Douglas Schmidt to exercise ordinary care appeared in the record, we are of the opinion giving the instructions was not error.
In Illinois one of the requisites in a negligence action is for plaintiff to allege and prove his freedom from contributory negligence. (See I.L.P. Negligence, sec. 184, 188.) The instructions in a negligence action should include the matter of plaintiff's contributory negligence. (I.L.P. Negligence, sec. 284.) Whenever plaintiff presents evidence which tends to show plaintiff has exercised due care, plaintiff's due care becomes a question of fact for the jury. (Genck v. McGeath, 9 Ill. App.2d 145, 132 N.E.2d 437.) Although plaintiff cites cases which he contends support his position that a contributory negligence instruction should not be given, those cases are distinguishable. In one of the cases, Shore v. Turman, 63 Ill. App.2d 315, 210 N.E.2d 232, giving an instruction dealing with contributory negligence on grounds of intoxication was reversible error where there was no evidence in the record of intoxication. In another case, Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461, there was no error in refusing to give a contributory negligence instruction where the circuit court had directed a verdict in favor of plaintiff on the issue of contributory negligence. The fact that only plaintiff presented evidence on Schmidt's due care does not establish lack of contributory negligence. Even though there is no dispute in the evidence regarding Schmidt's conduct, nevertheless, the jury might in viewing the conduct in light of all the evidence draw contrary inferences regarding the reasonableness of the conduct. As one of the necessary elements of plaintiff's cause of action, we believe contributory negligence was a question of fact for the jury and the instructions thereon were proper. Even plaintiff's own burden of proof instruction given to the jury included the following statement as one of the propositions which plaintiff must prove: "That the plaintiff before and at the time of the occurrence was using ordinary care for his own safety." Plaintiff therefore should not complain of defendant's instruction defining the duty of plaintiff to exercise ordinary care and defining the term contributory negligence.
• 3 Complaint is also made of an instruction given on defendant's behalf relating to concurrent negligence and patterned from IPI2d 12.04. His specific objection is to the second ...