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Larson v. Thomashow

JANUARY 16, 1974.

RONALD LARSON ET AL., PLAINTIFFS-APPELLEES,

v.

SAUL L. THOMASHOW, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT. — (GENERAL MOTORS CORPORATION, DEFENDANT AND COUNTERDEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS E. FITZGERALD, Judge, presiding.

MR. PRESIDING JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

The appeal in this case arises from an automobile collision that occurred on April 27, 1966, on the Edens Expressway in Chicago, Illinois. The defendant-appellant, Saul Thomashow (hereinafter defendant), appeals from a verdict and judgment against him and in favor of the plaintiffs Ronald Larson and Wilfred Larson. The plaintiffs' complaint charged the defendant with negligence and the jury found for the plaintiffs and awarded Ronald Larson $17,300 in damages and Wilfred Larson $1,555. The defendant also appeals from the directed verdict which was entered in favor of General Motors on the defendant's counterclaim. The defendant's counterclaim in Count I was based on a theory of strict liability and in Count II on a theory of breach of express and implied warranty. At the close of the defendant and counter-plaintiff Saul Thomashow's case, the trial court granted the counter-defendant General Motors' motion for a directed verdict. The defendant raises several issues in this appeal. The defendant contends that the trial court should have directed a verdict in his favor and against the plaintiff, Ronald Larson, because Ronald Larson was contributorily negligent as a matter of law. The defendant also contends that the plaintiffs failed to prove that he was negligent. The trial court refused to submit to the jury a special interrogatory tendered by the defendant and the defendant maintains this was error. It is also asserted that the jury verdict in favor of Ronald Larson is excessive. Finally, the defendant contends the trial court erred in directing a verdict in favor of General Motors. We find no merit in any of these contentions.

On the evening of April 27, 1966, between 8:00 and 8:30 P.M., the defendant was driving his 1964 Chevrolet Chevelle northbound on the Edens Expressway. The defendant's vehicle had been purchased new from Z Frank Chevrolet Company in December of 1963 and had been manufactured by General Motors Corporation. There are three northbound lanes on the Edens Expressway and the defendant was traveling in the outermost left hand lane. There is an emergency lane wide enough for an automobile adjacent to this lane. The defendant testified that there was a six inch grade difference between this emergency lane and the lane in which he was traveling. However, the plaintiffs introduced as an exhibit a picture of the area where the collision took place and it depicts that there is no grade difference. As the defendant was proceeding in the outermost left hand lane at 55 to 60 m.p.h., he heard a horrible noise and banging and felt a strange sensation. The defendant stated that, "From inside the car, it felt as though there was something underneath the car that was banging the underside of the car and hitting the ground, and ricocheting, if you will, between the ground and the underside of the car." The defendant's vehicle began to lose speed and coasted to a stop. It took approximately a minute between the time the defendant first heard the noise and the time the automobile stopped. The defendant testified that during this interval he did not turn the car to the left. Defendant also stated that at no time did he attempt to drive his vehicle onto the emergency lane to his left. As the automobile came to a stop, the defendant put on his left turn signal, rolled down his window, and gave a hand signal.

The defendant got out of his car and saw that the drive shaft had fallen from the rear axle. The rear part of the drive shaft was lying on the ground and it was spinning. The drive shaft was digging a hole into the pavement and was sparking. The defendant shut the motor off and then looked underneath the vehicle again and observed that the drive shaft had stopped rotating. The defendant raised the hood of the car and stated that he tried to push it from the rear but that he was unable to do so. At this time the defendant proceeded to the rear of the vehicle and spent five or ten minutes waving at traffic. The defendant testified that his rear taillights were on and that the left blinker was flashing. The defendant then proceeded across the highway to the east to seek assistance and while on the east embankment he heard a collision. It was the defendant's testimony that immediately upon hearing the collision he turned around and observed his automobile bursting into flames. The defendant stated that it traveled approximately 50 feet northeasterly across the three lanes of traffic.

The plaintiff, Ronald Larson, was driving the vehicle that collided with the defendant's vehicle. The vehicle was owned by the plaintiff, Wilfred Larson, and he testified that it was a 1963 Ford which was in good mechanical condition and had between 40,000 to 50,000 miles on it. He stated that prior to the accident the lights and windshield were in good operating condition. Ronald Larson testified that he was driving home on the evening of April 27, 1966. He stated he was traveling northbound on the Edens Expressway in the center lane going between 50 and 55 m.p.h. He was following a truck and decided to pass it by moving into the outermost left hand lane. After he was completely inside the outermost left hand lane he stated he observed the rear end of the defendant's vehicle but that he could not determine whether it was moving or stopped. Ronald stated, "In a matter of seconds after seeing this car, all I remember at this time was bringing my face up off the steering wheel and the collision had happened at that time." Ronald Larson was traveling at approximately 55 to 60 m.p.h. and was in the operation of applying his brakes but there was no braking before the collision. He stated that prior to the collision he did not observe any flashing lights or flares nor did he observe a hood up on the vehicle which he struck. He also testified that he could see the taillights of the defendant's vehicle but he could not tell whether or not the lights were on or off. The front end of the vehicle Ronald Larson was driving struck the rear end of the defendant's automobile.

After the collision Ronald Larson was taken to the Skokie Valley Hospital and was treated for injuries to his mouth and teeth. He was hospitalized for three days and remained under doctor's care until June of 1966. Ronald was unable to talk for the first few days after the accident and could not eat solid foods for two months. He was treated by a dentist for the damage to his teeth. Ronald was unable to work at his part-time employment from the date of the accident until May 6, 1966. He returned to work for a short period but was again unable to work from May 19, 1966 to June 1, 1966. Ronald earned $1.95 per hour in his part-time employment. As a result of the collision Ronald suffered permanent scars on the lip, mouth, and chin area of his face. The red part of his lip was also less sensitive to touch than the rest of his lip. It was stated by the doctor who treated Ronald that the scars could be improved by further surgery. Ronald Larson also suffered extensive dental injuries as a result of the collision and in the opinion of the dentist who treated him, Ronald lost six functioning teeth and had an impacted cuspid as a result of the collision. In addition Ronald testified that he was unable to seal his lips for a period of six months and was therefore unable to contain saliva or liquids within his mouth.

There was also testimony as to the condition of the defendant's automobile and the repairs that had been made to it from the date of purchase. This evidence will be set forth and discussed in relation to the defendant's contention that the trial court erred in granting General Motors' motion for a directed verdict.

• 1, 2 The defendant maintains that the trial court should have directed a verdict against the plaintiff, Ronald Larson, because he was contributorily negligent as a matter of law. This contention is premised upon the assertion that Ronald Larson was not maintaining a proper lookout as required by the law. The standard applied in determining whether or not to grant a directed verdict or a judgment n.o.v. was set forth in the celebrated case of Pedrick v. Peoria & Eastern R.R. Co. 37 Ill.2d 494, 229 N.E.2d 504 (1967):

"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick, supra, at 510; at 513-514.

It was also enunciated in the Pedrick decision that a similar standard should determine when negligence and contributory negligence questions become questions of law rather than questions of fact.

"Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue." Pedrick, supra, at 503 at 510.

The defendant asserts that Ronald Larson had a duty to be on the lookout for other automobiles moving or standing in the highway and to use every precaution to avoid a collision. (Waldron v. Hardwick, 99 Ill. App.2d 36, 240 N.E.2d 772 (1968); Skamenca v. Reeser, 294 Ill. App. 216, 13 N.E.2d 668 (1938).) While we agree that such duties existed, this court is also cognizant of the decision in Nei v. Contracting & Material Co., 93 Ill. App.2d 226, 236 N.E.2d 264 (1968). The court pointed out that there are numerous cases within this jurisdiction that have held that a person who collides with another in the rear is guilty of contributory negligence as a matter of law. However, it has also been established that such cases have to be decided on their own peculiar facts. The Nei decision is also authority for the proposition that the different conditions existing on modern urban highways must also be taken into account. The court stated:

"Therefore, the circumstances which have led courts to find negligence as a matter of law in rear-end collisions on other roadways are not necessarily controlling in rear-end collisions on high-speed, urban expressways." Nei, supra, at 230; at 266.

The evidence in this case shows that prior to the collision Ronald Larson was in the center northbound lane of the Edens Expressway traveling at between 50 to 55 m.p.h. and following behind a truck. He decided to pass the truck and stated that due to the truck his vision ahead to the right and left was partially obstructed. Larson checked for cars around him and then moved into the outermost left hand lane. Only upon completely arriving in this lane did he observe the defendant's vehicle and he could not determine whether it was moving or stopped. The defendant states in his brief that it is undisputed that his hood was up; the car lights were on; and that his left turn signal was blinking. However, the record clearly reflects that Ronald Larson testified that he could not determine if the defendant's taillights were on; that he did not see a flashing light; and that he did not observe the hood up on the defendant's vehicle. There was also evidence that immediately prior to the accident Ronald Larson was in the operation of applying his brakes but that there was no braking prior to the collision. The defendant maintains that the vision of Ronald Larson could only have been obstructed if he were tailgating the truck and even if he were tailgating he had vision in the passing lane the moment he started into that lane since he was on the left side of the car in the driver's seat.

• 3 In accordance with the Pedrick rule, we must view all of the evidence in a light most favorable to Ronald Larson and determine whether that evidence so overwhelmingly favors the defendant that no contrary verdict could ever stand. Since this collision occurred upon one of our modern urban expressways, we must also take into account the unique conditions which exist upon them. (Nei v. Contracting & Material Co., supra.) On an expressway, traffic proceeds at a greatly increased rate of speed and is often more closely together than on other roadways. When following a vehicle such as a truck, the vision ahead into other lanes is definitely obstructed and limited. The outermost left hand lane is commonly accepted and authorized as the passing lane. It is the lane in which traffic is the most free flowing and in which the rate of speed reaches its maximum. As pointed out in Ronald Larson's brief, no one expects to find a stopped vehicle in this lane. Even with the view partially obstructed, it is not uncommon to proceed into the passing lane in order to overtake slower moving traffic. It would be unrealistic to say that one should not proceed into the passing lane until his vision is unobstructed for more than a few car lengths. Taking the conditions which exist upon our modern urban expressways into account and viewing the evidence in a light most favorable to Ronald Larson, we cannot conclude that the trial court erred in not directing a verdict in favor of the defendant, nor that Ronald Larson was contributorily negligent as a matter of law.

"Questions of negligence and due care are ordinarily questions of fact for a jury to decide. Questions which are composed of qualities sufficient to cause reasonable men to arrive at different results should never be determined as a matter of law. The jury is the tribunal under our legal system to decide that type of issue. To withdraw from the jury the determination of questions of fact is to usurp its function. Ney v. Yellow Cab ...


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