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Thomas v. Goodman

OPINION FILED JULY 5, 1977.

LENORA E. THOMAS ET AL., PLAINTIFFS-APPELLEES,

v.

ELIZABETH O. GOODMAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Franklin County; the Hon. ALVIN LACY WILLIAMS, Judge, presiding.

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

The plaintiffs, Lenora E. Thomas and her daughter, Debra Thomas, brought suit in the Circuit Court of Franklin County against the defendant, Elizabeth O. Goodman. The plaintiffs sought damages which resulted from an automobile collision involving the parties on November 24, 1974. The jury returned a verdict for plaintiffs, awarding Lenora Thomas, the driver of the Thomas automobile, the sum of $15,000 and Debra Thomas the sum of $7,000. The jury answered "No" to the special interrogatory: "Was Lenora E. Thomas before or at the time of the occurrence in question guilty of contributory negligence which was a proximate cause of the accident and her injuries?" The court entered judgment on the verdicts, and the defendant appeals.

Defendant was called as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60). She testified that she had been traveling in a northwesterly direction on a blacktop road which intersects, but does not cross, Illinois Route 149 at approximately a 135-degree angle. After having stopped at the stop sign at the intersection, she looked in both directions and made a right-hand turn in order to travel in an easterly direction toward West Frankfort. A railroad crossing crosses Route 149 approximately 10 to 15 feet east of the intersection. She further testified that defendant's and plaintiffs' vehicles collided in the eastbound lane of traffic on the east side of the railroad tracks and that she never entered plaintiffs' westbound lane of traffic.

Plaintiffs testified that the collision occurred in the westbound lane of traffic. The plaintiffs were traveling in a westerly direction on Illinois Route 149 between West Frankfort and Ziegler, Illinois. Lenora was driving and Debra was sitting in the front passenger seat. They testified that defendant failed to stop at the intersection and entered into the westbound lane of traffic. In order to try to avoid a collision, Lenora pulled off the highway onto the shoulder. Due to the close proximity of a railroad signal, she pulled back onto the highway, and the collision occurred. Although the Thomas vehicle was equipped with seatbelts, neither plaintiff utilized them at the time of the collision. Due to the collision, Debra was thrown forward and struck the windshield while Lenora's head struck the rearview mirror and her knees hit the dashboard.

West Frankfort Police Officer Donald Graskewicz testified that he was called to the accident scene in order to aid the injured and to direct traffic. He did not make an investigation of the accident, because the collision occurred outside the West Frankfort city limits where the Illinois State Police had jurisdiction. Officer Graskewicz thought the debris from the collision was in the eastbound lane as was depicted in a photograph. Over defense objection, he testified that the intersection was hazardous, because a person turning east from the blacktop onto Route 149 would encounter problems staying in the eastbound lane of traffic.

State Trooper Jack Grazanich testified that the intersection was hazardous for any automobile turning east, because of the narrowness of the roads and the position a driver must be in to correctly make the stop. No objection was made to this testimony. He further testified that the debris from the collision was found in the eastbound lane. It was his experience as a State trooper that, in an automobile accident, the dirt from the undercarriage of automobiles drops straight down when a collision occurs. Based on the foregoing, Trooper Grazanich was of the opinion that the collision occurred in the eastbound lane.

Dr. Richard Fox, M.D., testified to the treatment he gave the plaintiffs immediately after the accident and for several months thereafter.

Bob Martin, a friend of plaintiffs, came upon the scene of the accident soon after it occurred. He went to the Thomas' automobile and asked what had happened, to which Lenora responded that "this woman was coming from the sideroad and came across the road across the center line and I hit her." Mr. Martin saw the Thomas' groceries and volunteered to take them home. The trial court ruled that the foregoing testimony was admissible under the "excited utterance" exception to the hearsay rule.

• 1 On appeal, the defendant alleges numerous errors which allegedly occurred in the trial court. The first we will consider is whether it was error to give the following instruction:

"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

Every driver of a vehicle approaching a stop intersection indicated by a `stop' sign shall stop at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another roadway or which is approaching so closely on the roadway as to constitute an immediate hazard.

If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence."

Section 11-904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-904(b)) states:

"(b) Except when directed to proceed by a police officer or traffic-control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another roadway or which is approaching so closely on the roadway as to constitute an immediate ...


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