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Hayes v. Alsburg

OPINION FILED SEPTEMBER 12, 1977.

DOROTHY HAYES, PLAINTIFF-APPELLANT,

v.

LOWELL RUSSELL ALSBURG ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McLean County; the Hon. LUTHER H. DEARBORN, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Four-car accident.

Passenger asleep in #3 car injured.

Jury found for all four drivers.

Two issues here.

I. Whether the evidence established, as a matter of law, that one or more of the defendants were guilty of negligence.

II. Whether the trial court erred in submitting the question of plaintiff's contributory negligence to the jury.

The bottom line first.

We affirm.

The accident occurred on August 30, 1969, at about 1:30 a.m. It was a clear night and the pavement was dry. All the vehicles were in the passing lane on U.S. Route 66. Alsburg (#1), Vickers (#2), Enyart (#3) and Hart (#4).

Alsburg (in the lead) testified that he was preparing to turn left, and was about 100 feet from a crossover with his turn signal on, when he was struck in the rear by Vickers (the second driver). Vickers, however, testified Alsburg was beyond the crossover and stopped when he saw the Alsburg car, and that he (Vickers) had stopped behind Alsburg, when he was hit in the rear twice. Enyart (#3 driver) testified that he saw Vickers (#2 car) stopped ahead of him and that he (Enyart) was almost stopped when the Hart car (#4) hit him from behind and pushed him into #2 car (Vickers). Hart (#4) testified that he switched into the passing lane, immediately heard a crash and saw the Enyart car (#3) swerve up off the pavement. He braked, but was unable to stop, and hit Enyart.

All the passengers who testified corroborated the testimony of their particular driver. Plaintiff Hayes was a backseat passenger in the Enyart vehicle (#3) and was asleep at the time of the accident.

I

As can readily be seen, each of the drivers' testimony tended to exonerate himself and fault one or more of the other drivers. Plaintiff interestingly contends that, in this situation, she was entitled to a jury instruction which stated that the court found one or more of the defendants guilty of negligence but that it was for the jury to decide ...


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