APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the circuit court of Tazewell County entered on August 14, 1974, denying post-trial motions of George Olson, defendant, and from the verdict of July 17, 1974, awarding the plaintiff, Thomas Eichorn, damages of $25,000.
On October 29, 1968, at approximately 10 p.m., the plaintiff drove his automobile into the rear of a vehicle owned by the defendant, killing the defendant's employee, Wynn Coppenbarger, and causing the injuries for which he received a verdict of $25,000. The Olson vehicle, a 1966 Rambler, had run out of gas and was being pushed by Coppenbarger in the outside or south eastbound lane of the four-lane highway as the plaintiff approached in his 1964 Plymouth. The night was clear, the pavement was dry, the road was straight and level in the area of the collision and the headlamps and tail lights on the Rambler were operating. No one actually witnessed the impact other than Eichorn and he was unable to recall the events at or before the time of the impact because of amnesia.
Wells and Hinds, passengers in the Rambler automobile, did not wake up from the time they left Taylorville until they got on the ramp leading to or on I-74 eastbound lanes. When they awakened Coppenbarger was outside the car pushing it, with his right hand on the steering wheel. Coppenbarger told Hinds that he was running out of gas and was going to try to make it to the next exit ramp (the Morton exit). Hinds told Coppenbarger to get back in the car and pull over, but Coppenbarger said, "No." He let go of the steering wheel and ran toward the back of the car. Just as Hinds, from his seat on the passenger side, put his left hand on the steering wheel to guide the car, the collision occurred.
The jury returned a verdict in favor of the plaintiff for $25,000 and this appeal follows.
Defendant raises three assignments of error on this appeal: First, the plaintiff was guilty of contributory negligence as a matter of law, and consequently the trial court erred in refusing to enter judgment notwithstanding the verdict; second, the court erred in admitting testimony of careful habits; and third, the court erred in the giving and refusing of instructions.
With respect to defendant's first contention that the plaintiff was guilty of contributory negligence as a matter of law, the defendant insists that the only inferences which may be reasonably drawn from the evidence are that either the plaintiff saw the defendant's car and negligently failed to avoid the collision or he failed to see the car and thus negligently failed to keep a proper look out. As may be seen from the facts surrounding the incident, defendant's theory is predicated on the facts that the tail lights on the defendant's car and head lights on the plaintiff's car were operating properly, that the view for about one-third mile west of the impact was clear and unobstructed and that therefore plaintiff should have seen or did see the defendant's car, for all practical purposes, stopped on the highway.
• 1 However, we believe that there are reasonable inferences which may be drawn from the evidence which do not necessarily require the conclusion that plaintiff failed to exercise due care for his own safety. There are at least three inferences, as pointed out by plaintiff's counsel, which might explain plaintiff's conduct in nonnegligence terms. They are first of all the difficulties of judging the speed of a vehicle being overtaken at night merely because the vehicle has its rear lights operating properly. Even though the presence of the defendant's car may have been delineated by its rear lights, the question remains as to whether or not the plaintiff was or was not in the exercise of due care in failing to ascertain that the car was stopped on the highway. In the second place, the evidence does not clearly establish the absence of background lights or other conditions from which it could be inferred that the plaintiff could have ascertained a vehicle was stopped on the pavement beyond any contrary inference. Finally, the evidence, although demonstrating the point of impact in the outside lane of the highway, does not show that the defendant's car was always in the outside lane after the vehicle turned on to the eastbound I-74 lanes. We are therefore not prepared to say that the rule in Pedrick requires that plaintiff be found guilty of contributory negligence as a matter of law. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.
• 2 The defendant's next contention is that the court erred in admitting the testimony of Ruth Eichorn, the plaintiff's mother, concerning the plaintiff's careful habits. As stated previously, there were no witnesses to the impact other than Eichorn and he was unable to recall the events at or before the time of the impact because of amnesia.
The plaintiff in a personal injury action has the burden of proving that he was in the exercise of due care for his own safety at the time of the accident. However, where direct testimony by an eyewitness is not available, due care may be inferred from testimony of careful habits of the deceased and the circumstances surrounding the accident. (Hughes v. Wabash R.R. Co., 342 Ill. App. 159, 95 N.E.2d 735.) This inference may also be made to show due care on the part of an accident victim suffering retrograde amnesia where there are no eyewitnesses. Baker v. Norfolk & Western Ry. Co., 120 Ill. App.2d 296, 256 N.E.2d 887; Campbell v. Ragel, 7 Ill. App.2d 301, 129 N.E.2d 451.
In the case at bar the absence of any eyewitnesses and the plaintiff's amnesia permitted the introduction of the testimony of careful habits. See also Plank v. Holman, 46 Ill.2d 465, 264 N.E.2d 12; McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708.
Finally the defendant contends that error was committed in the giving and refusing of various instructions.
The trial court refused to charge the jury in accordance with the following instruction tendered by defendant:
"The Court instructs the jury that you may, in considering the nature and extent of the Plaintiff's injury or damage, consider together with all the other facts in evidence, whether or not the Plaintiff did or did not avail himself of the use of seat belts and if he did not avail himself of the use of seat belts in the automobile in which he was ...