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Oudshoorn v. Warsaw Trucking Co.

OPINION FILED MAY 14, 1976.

WILLIAM A. OUDSHOORN, PLAINTIFF-APPELLEE,

v.

WARSAW TRUCKING COMPANY, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY S. STARK, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

A jury awarded damages to plaintiff for personal injuries arising out of a collision between a vehicle driven by him and a truck owned by defendant Warsaw Trucking Company and operated by defendant Donald Steffen. On appeal, defendants contend plaintiff was guilty of contributory negligence as a matter of law and that they were not afforded a fair trial because of erroneous instructions and the improper reception of certain evidence.

Both vehicles were traveling on Route 58 approaching Route 53 in Schaumberg, Illinois — plaintiff was eastbound and the truck westbound. The collision occurred when the truck turned left into the approach road to Route 53, which overpasses Route 58. At that intersection, when the traffic signal for eastbound traffic changed to red, a green arrow permitted westbound traffic to make a left turn. The red light for eastbound traffic changed to green simultaneously with the extinguishment of the left turn signal for westbound traffic, at which time the lights then were green for traffic in both directions.

Plaintiff testified he had stopped at an intersection one block west of the accident scene. From there, he slowly accelerated to a speed of 30-35 m.p.h. and had traveled about two-thirds of the distance to the accident intersection when the red light there changed to green. He was traveling in the lane nearest the center of the street, and he first saw the truck when "it was entering my lane, making a left turn into my lane." He stated that the truck was traveling "unusually fast" and that there was a 2 or 3 or perhaps even a 4-second interval between the time he observed the truck and the time of the impact. He was just entering the intersection when he first saw the truck, and he applied his brakes and turned to the right in an attempt to avoid it.

Charlotte Price, a witness called by plaintiff, testified that she was driving her vehicle behind plaintiff from the previous intersection. She was traveling at a speed of 30-35 m.p.h., and she stated that the traffic signal at the accident intersection turned to green when she was halfway between the two intersections. It seemed to her that as plaintiff was entering the intersection "this truck seemed to materialize from nowhere, almost, all of a sudden the truck was there." She stated without objection that she thought plaintiff's car reached the intersection a moment or so before the truck did and it appeared to her that the truck "just kept going at him until he hit Mr. Oudshoorn's car and pushed it off to the side." Just prior to the accident she noticed the brake lights of plaintiff's car go on and heard the screech of brakes. The witness stated further that she was traveling three or four car lengths directly behind plaintiff's vehicle in the middle lane.

The truck was a tractor-trailer combination 13 feet high, painted yellow and white. The driver stated that the accident occurred when he was turning left on the green arrow to go south, traveling in second gear (out of ten gears), at about 3-4 m.p.h. There were two left-turn lanes at that intersection, and he was in the northernmost (second from the median strip). Two other vehicles made left turns ahead of him and, in following them, his truck crossed the other left turn lane, the median strip, one lane of eastbound traffic, and was in the middle eastbound lane when the impact occurred.

The jury found for the plaintiff in its general verdict and answered a special interrogatory that he was not guilty of contributory negligence.

OPINION

Defendants initially seek reversal on a contention that the court should have directed a verdict in their favor because plaintiff allegedly was contributorily negligent as a matter of law.

• 1 It is now well settled in Illinois that judgments are to be directed only in those cases in which all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.

In support of their contention, defendants argue that plaintiff was familiar with and had a clear, unobstructed view of the intersection; that it was daylight and the truck was within his possible vision for several blocks as it was coming from the opposite direction; that the truck was 13 feet high, and its yellow and white painting made it clearly visible; that the truck traveled about 35 feet from the time it started its left turn until the impact occurred; that plaintiff did not apply his brakes until he entered the intersection; that plaintiff did not see the truck until it was in the middle lane of westbound traffic; that plaintiff thought he had been involved in an accident with an earth moving machine; and that plaintiff did not see the two vehicles which the truck driver said had made left turns ahead of him. On the basis of the above defendants contend that plaintiff did not keep a proper lookout and, in fact, did not see the truck. They cite numerous authorities stating propositions of law as follows: That a driver of a vehicle has a common law duty to be on the lookout for other vehicles (Waldron v. Hardwick, 99 Ill. App.2d 36, 240 N.E.2d 772); that the law does not countenance the anomoly of a person stating that he looked but did not see that which was clearly visible (Sumner v. Griswold, 338 Ill. App. 190, 86 N.E.2d 844); that the law will not give credence to testimony that one looked but did not see, when it is apparent that if the person had looked he must or should have seen (Zielinski v. Pleason, 299 Ill. App. 594, 20 N.E.2d 620); that failure to look at an intersection is negligence per se (Crowe Name Plate & Manufacturing Co. v. Dammerich, 279 Ill. App. 103; Tuohey v. Yellow Cab Co., 33 Ill. App.2d 180, 180 N.E.2d 691).

Plaintiff, however, calls attention to his testimony that he saw the truck when it was entering his lane of traffic, which he said was the lane next to the center of the road; that the truck was traveling "unusually fast"; that he applied his brakes as he entered the intersection and swung to the right; that there was "a two to four second interval between the time he first observed the truck and the impact"; that the truck driver admitted he had made a wide turn and intended to "shoot up the hill" to Route 53; that the front of the truck struck the left side of his vehicle; that he was corroborated by the witness Price in his testimony that the light was green in his favor when he was some distance from the intersection, which would mean that the truck was making an improper turn.

We are in accord with propositions of law in the authorities cited by defendants but, in viewing the evidence in its aspect most favorable to plaintiff, as we are required to do by Pedrick, we must infer the following: (1) that plaintiff entered the intersection with the green light (he and the witness Price so testified); (2) the light being green for plaintiff, the truck was making an improper turn because the green left turn arrow would have gone out; (3) that plaintiff was in the lane next to the center line (although the truck driver and Price stated that plaintiff was in the middle eastbound lane); (4) that plaintiff saw the truck when he was entering the intersection and, at that point, applied his brakes and swung to the right (Price saw the brake lights go on before the impact and heard the screech of brakes; the truck driver said plaintiff was not speeding and was almost stopped at the time of the impact); (5) that plaintiff saw the truck 2 or 3 or perhaps 4 seconds before the impact; (6) that the truck came into contact with the side of plaintiff's car (Price and plaintiff so stated, and the driver of the truck testified that the "whole left side of plaintiff's car was damaged"); (7) that the truck was traveling "unusually fast" (this was corroborated to some extent by Price — who said that the truck just seemed "to materialize" from nowhere, and by the truck driver — who testified that he did not come to a stop before starting his left turn); (8) that plaintiff entered the intersection first (Price so testified).

In view thereof, we cannot say that the evidence was so insufficient that no contrary conclusion of a jury could be allowed to stand. We hold that the question of contributory negligence was properly submitted to the jury and that its answer to the special interrogatory is supported by the ...


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