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Tanenbaum v. Loveless

NOVEMBER 29, 1973.

BENE A. TANENBAUM, PLAINTIFF-APPELLANT,

v.

C.B. LOVELESS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This action was brought in the circuit court of Cook County to recover damages for personal injuries sustained by the plaintiff, Bene A. Tanenbaum, when a vehicle operated by her was struck by a vehicle owned by defendant, The Hertz Corporation, and operated by its agent, C.B. Loveless. The complaint was brought in two counts: one alleged negligence, and the other charged wilful and wanton misconduct. At the close of all the evidence, the trial court struck the wilful and wanton count. A jury then returned a verdict for plaintiff against defendants for $14,000, and the trial court entered judgment on the verdict. Subsequently, the trial court, finding that plaintiff was guilty of contributory negligence as a matter of law, granted defendants' motion for judgment notwithstanding the verdict. That order provided in the alternative that, should the judgment n.o.v. be reversed on review, defendants should be granted a new trial. Plaintiff appeals from the refusal of the trial court to vacate its entry of judgment notwithstanding the verdict. Plaintiff also contends that the trial court erred in striking her wilful and wanton misconduct count.

Certain facts are uncontroverted. On October 17, 1965, at approximately 9:00 P.M., three vehicles were involved in an accident at the intersection of State Street and Walton Place in the City of Chicago. At this intersection State is a preferential throughway permitting two-way, north-south traffic, while Walton, a one-way street permitting westerly traffic only, is marked by a stop sign. The posted speed limit on State at this point is 30 miles per hour.

A Hertz owned station wagon operated by defendant Loveless was proceeding south on State after having stopped at a traffic signal at Oak Street. Oak is a short block north of Walton. Plaintiff's vehicle, a convertible with its top down, and a Checker Cab were proceeding west on Walton.

Plaintiff's vehicle and the cab proceeded along side each other, entering the intersection about simultaneously. Plaintiff's vehicle was directly north of the cab. When both vehicles had crossed the center line of the intersection, defendants' vehicle struck plaintiff's vehicle, which in turn was driven against the cab. The three vehicles came to rest in the intersection with the front of defendants' vehicle imbedded in the right side of plaintiff's vehicle. A tow truck was used to separate the vehicles. Plaintiff had two passengers in her vehicle, and one of them was killed. Plaintiff's vehicle was damaged beyond repair.

The following additional evidence relevant to this appeal was adduced. Plaintiff testified that she stopped in the north lane on Walton at the State Street stop sign. The cab, also stopped, was directly south of her. Looking to the left and right, plaintiff did not observe any approaching traffic. She pulled ahead slightly in order to obtain a better view and stopped again. She observed no traffic to the left. To the right she observed that the traffic light at Oak was red to north-south traffic and that traffic coming south on State was stopped at this light. At this point both the cab and plaintiff's vehicle started to cross the intersection, with the cab slightly ahead. Plaintiff further testified that upon proceeding slightly more than halfway through the intersection she saw defendants' vehicle coming toward her. She was unable to judge the speed of defendants' vehicle, but it was going "very fast." Plaintiff testified that she did not have time to sound her horn or apply her brakes, and she did not hear Loveless sound his horn or apply his brakes. She was not aware of defendants' vehicle until she was into the intersection. She did not remember telling a police officer that she did not see defendants' vehicle at all.

Bette Herbert, an area resident, testified for plaintiff that at the time of the accident she was standing on the sidewalk on Walton. She was halfway between State and Rush Street, the block to the east of State. Looking toward the State and Walton intersection, Mrs. Herbert observed plaintiff's vehicle and a cab proceed west on Walton and come to a stop at the intersection. As the cab and plaintiff's vehicle crossed the intersection, she observed defendants' vehicle strike plaintiff's vehicle "with great force." As a result of the impact plaintiff's vehicle was thrown against the cab, which in turn was thrown against a parked automobile. The witness estimated the speed of defendants' vehicle as "excessive." She also testified that the sound of the crash was terrific.

David Fishman, a court reporter, testified for plaintiff as to statements made by defendant Loveless at a deposition. Loveless there stated that he first saw plaintiff's vehicle at the time of impact. He also stated that he did not sound his horn or apply his brakes before the impact.

Officer Joseph Krieger of the Chicago Police Department testified for plaintiff that upon investigation of the accident he found three extremely damaged vehicles in the intersection: defendants' vehicle was facing south on State, while plaintiff's vehicle and the cab were facing west on Walton. There were no skid marks.

Officer Krieger further testified that the cab driver told him that plaintiff's vehicle began to cross the street slightly before his cab; when both vehicles were about three-fourths across the intersection, plaintiff's vehicle was struck by defendants' vehicle and driven into his cab.

The officer testified that the plaintiff told him that she did not know if there was any other traffic on the street. When asked by the officer how far away defendants' vehicle was when she first observed it, she responded, "I did not see this car at all." Officer Krieger also stated that at the time of giving her statement plaintiff was highly emotional and in a semi-state of shock. She was unable to answer any further questions and did not sign her statement.

Defendant Loveless testified by means of evidence deposition that at the time of the accident he was proceeding south on State in the course of his employment with Hertz transferring a station wagon from one depot to another. After stopping for about 30 seconds for a red light at Oak, he proceeded south on State. Traffic was light, and no cars were in front of him. The highest speed he attained on State was 25 miles per hour. Loveless testified that he first saw plaintiff's vehicle when it was about 14 feet in front of him as it "jumped" from the stop sign. By jumping he meant that all of a sudden the car was in front of him. He did not have time to apply his brakes or sound his horn. He never saw the cab prior to impact with plaintiff's vehicle. Loveless also testified that he probably had made an earlier statement that he did not see plaintiff's vehicle prior to impact.

Plaintiff's initial contention is that the trial judge erred in entering judgment notwithstanding the verdict in favor of the defendants. She urges that the trial court's determination that she was contributorily negligent as a matter of law was erroneous.

• 1, 2 Verdicts should be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) A plaintiff is contributorily negligent as a matter of law only when the evidence of due care is so insufficient that no contrary conclusion of a jury could ever be allowed to stand. (Rose v. B.L. Cartage Co. (1969), 110 Ill. App.2d 260, 249 N.E.2d 199.) A motorist approaching a preferred highway is required only to exercise reasonable care after he has stopped, yielding the right-of-way to those vehicles which constitute an immediate hazard; he is not required to stop long enough for any traffic to pass which he may observe regardless of its distance from the ...


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