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Hook v. Heim





APPEAL from the Circuit Court of Madison County; the Hon. WILLIAM L. BEATTY, Judge, presiding. MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Plaintiff, Joseph Hook, brought this action in the circuit court of Madison County for damages for personal injuries allegedly caused by the negligence of defendants, James Heim, Kenneth Jones and Robert Moore. A dram shop action against two additional defendants was dismissed prior to trial. During the course of the jury trial, the causes of action against Moore and Jones were dismissed on motion by Hook. The jury rendered a verdict against the remaining defendant, Heim, in the amount of $13,000, and a judgment was accordingly entered from which Heim now brings this appeal.

The issues Heim presents for review are: (1) whether the conduct of defendant Moore was an efficient intervening cause which should absolve Heim of liability; (2) whether a new trial is warranted due to the circumstances surrounding the loan receipt agreement between Hook and Jones; and (3) whether certain trial errors were committed.

On September 22, 1973, at approximately 1:30 a.m., defendant Heim was driving his pickup truck in a southerly direction on Route 67 near an establishment called Pat's 111. At the same time and place defendant Jones and a passenger were traveling in a northerly direction in Jones' automobile. Route 67 consists of two lanes. Each defendant testified that the other defendant was driving in the wrong lane. As the vehicles approached one another, each vehicle was turned sharply to its left to avoid impact but the right front fender of Jones' auto struck the right side of Heim's truck. After impact, the truck came to a rest in a ditch running alongside the north-bound lane while Jones' auto came to rest in the center of the road facing south.

A group of people, including plaintiff Hook came out from Pat's 111 to the scene of the collision. Hook went first to the passenger side of Jones' car and attempted to open the door on that side. When this was finally accomplished, Hook went around to the driver's side of the car leaving two or three others who were rendering aid to the injured passenger. Approximately five minutes had passed since the first impact. As Hook approached the driver's side, a third vehicle, driven by defendant Moore, struck Jones' auto which, in turn, struck Hook breaking his leg.

Jones testified that he and his passenger were in his car after the first collision when he saw another car coming toward him at 50 to 60 miles per hour. He also saw the silhouette of someone unsuccessfully trying to flag down Moore's vehicle but the vehicle did not even slow down before striking Jones' car head on.

Heim's first contention on appeal involves proximate cause. He argues that the trial court erred in denying his motions for a directed verdict and for a judgment n.o.v. because his negligent actions were not the proximate cause of plaintiff's injury. While he does not dispute that his negligence was a cause in fact of the injury (see Kerns v. Engelke, 54 Ill. App.3d 323, 369 N.E.2d 1284), he argues that the negligence of Moore was an intervening force which as a matter of law relieved him of legal responsibility for the consequent injury.

• 1-3 For a negligent act to constitute the legal cause of an injury, the injury must be the natural and probable result of the negligent act and be of such a character as an ordinary prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that a defendant should have foreseen the precise harm which resulted from his act. (Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497; Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74.) An intervening force is one which actively operates in producing harm to another after a defendant's negligent act or omission has been committed. (Buehler v. Whalen, 41 Ill. App.3d 446, 355 N.E.2d 99, appeal allowed, 64 Ill.2d 595.) An intervening force will not break a causal connection if that force was itself probable or foreseeable by the original wrongdoer. (Neering v. Illinois Central R.R. Co.) Proximate cause is ordinarily a question for the jury to decide. Thus for Heim to now escape liability it must be demonstrated that the intervening force was unforeseeable as a matter of law. (Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93.) The test in this regard is as enunciated in Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513:

"* * * 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."

• 4 In our view, the negligence of Moore cannot be characterized as unforeseeable as a matter of law. It was nighttime and the evidence shows only that there was minimal lighting in the area consisting of a sign in front of Pat's 111 and the headlights on Jones' and Heim's vehicles. Moreover, there was no evidence of any effective warning being given to other cars approaching the scene of the initial collision; the only evidence in this regard was that a person or persons attempted to flag down Moore just prior to the second impact but there was no evidence that these persons had lights, flares, or were otherwise observable. Following the initial collision, Jones' auto came to a rest on the center of the road blocking both lanes of the two lane highway. The second collision occurred approximately five minutes after the first collision. At that time the several people present were still in the process of removing the occupants of Jones' car. We see nothing freakish or fantastic in the sequence of events which led to Hook's injury (see Kerns v. Engelke), rather a jury could find that the events were concatenated by circumstances that were not unusual or extraordinary and that Hook's injury was a natural and probable result of Heim's negligent actions. Accordingly, the trial court did not err in denying Heim's motions.

Heim next contends that the circumstances surrounding a loan receipt agreement entered into by Hook and Jones were such as require a new trial. Hook has moved to strike this portion of Heim's brief (which motion we have taken with the case), on the grounds that the argument is based upon facts not appearing of record. Since we find the record sufficient to establish reversible error (Maborn v. Moyers, 26 Ill. App.3d 231, 325 N.E.2d 47), we deny Hook's motion.

The record shows that in return for a loan of $7,000 from Jones to be repaid solely from any judgment rendered in the cause, Hook agreed to exert reasonable efforts to obtain a judgment against Heim. The agreement, itself, has not been made part of the record. At a hearing on Heim's post-trial motion, counsel for Heim stated that prior to jury selection he was informed by the attorney representing Hook, in connection with a proposed settlement, that Hook and Jones were negotiating a loan receipt agreement. Counsel for Hook stated that the agreement was entered into either prior to trial or during the "very early" portions of the trial.

The record also shows the following participation by Jones as a party-defendant in the trial: he made an opening argument following jury selection; he cross-examined Hook's first witness, Dr. Beemer, who testified about Hook's injury; he then, himself, was called by Hook to testify under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60); and he cross-examined Heim, when Heim was called to testify by Hook under section 60. At the conclusion of Jones' cross-examination of Heim, Hook moved to dismiss Jones. Heim objected to a dismissal and moved for a mistrial arguing that the loan receipt agreement between Jones and Hook and the timing of the dismissal prejudiced the case against him. The trial court granted Hook's motion to dismiss. We note that Heim's reference to the loan receipt agreement was the only such reference to it made at any time prior to arguments on Heim's post-trial motion. When the reference was made by Heim, the court did not inquire into the nature and terms of the agreement or of the time of negotiation and execution thereof, nor did Hook or Jones disclose any such information at that time.

On appeal Heim contends, in effect, that it was the duty of Hook and Jones to fully disclose to the court the loan receipt agreement at the time that it was entered. Heim particularly urges that it was reversible error for the contracting parties to have not so disclosed and for Jones to have continued his participation after the agreement was entered. Hook responds by arguing in effect that Heim may not now complain of the agreement since he had not inquired about the agreement during the trial nor had he presented any evidence thereon.

• 5 In Illinois, loan receipt agreements have been approved within limits not here relevant. (Reese v. Chicago, Burlington & Quincy R.R. Co., 55 Ill.2d 356, 303 N.E.2d 382; Harris v. Algonquin Ready Mix, Inc., 59 Ill.2d 445, 322 N.E.2d 58; Kerns v. Engelke, 54 Ill. App.3d 323, 369 N.E.2d 1284.) The court in Reese while approving such agreements, also cautioned that they could tend to "undermine the adversary nature and integrity of the proceedings" against the non-contracting defendants, but that this danger could be avoided through safeguards such as permitting the non-contracting ...

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