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Drollinger v. Merrell





APPEAL from the Circuit Court of Christian County; the Hon. PAUL M. HICKMAN, Judge, presiding.


Mr. JUSTICE KARNS delivered the opinion of the court:

We granted plaintiff-appellant, William L. Drollinger, leave to appeal pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306) from an order of the Circuit Court of Christian County granting defendants-appellees, Byrl P. Beckert, his employer, McBride's Express, Inc., and John E. Merrell, a new trial in plaintiff's action for damages resulting from personal injuries sustained in a multivehicle accident. The jury returned a verdict for plaintiff against the defendants in the sum of $450,000, and in the same trial, a verdict in favor of the defendant, McBride's Express, Inc., on its counterclaim for property damage for $16,000 against co-defendant, John E. Merrell. The decision of the trial court in granting new trials was based on its determination that the verdicts of the jury were hopelessly inconsistent and could not be reconciled on any legally logical basis. With this determination we disagree.

Bridgeport Wholesale Company, alleged to be Merrell's employer, was a defendant; however, the jury found it not guilty and no appeal was taken from that determination. McBride's Express, Inc., did not appeal from the order granting Merrell a new trial on McBride's property damage claim.

On December 3, 1973, at approximately midnight, plaintiff was driving a tractor-trailer vehicle in a southerly direction on Illinois Route 48. Beckert, employed by McBride's Express, Inc., was driving a tractor-trailer in a northerly direction on the same highway. It was raining, but visibility was relatively good. Route 48 intersects Old State Route 29 just east of Taylorville, Illinois. Approximately 600 feet south of this intersection, traffic proceeding in a northerly direction on Route 48 passes under an overpass. While Route 48 is a preferential highway at this intersection, a flashing yellow caution light was directed to northbound traffic on Route 48 one-tenth mile south of the intersection. Beckert, who was familiar with this intersection, testified that he saw plaintiff's vehicle approaching the intersection from the north and estimated that he and plaintiff would arrive at the intersection at the same time.

John E. Merrell was driving in an easterly direction on Old State Route 29; traffic proceeding in this direction was required to stop at the intersection of Old Route 29 and Route 48. A flashing red light cautioned east bound traffic that it was required to stop. Merrell testified that he stopped at the intersection.

Beckert testified he saw Merrell approach the intersection; that he decelerated from 50 M.P.H. when 400 feet from the intersection; and when he saw Merrell stop, he reapplied his foot to the accelerator resuming a speed of approximately 40-45 M.P.H. When he was approximately 100 feet from the intersection, Merrell drove into the intersection. Beckert testified he slammed on the brakes and turned to the left to avoid a collision with Merrell's automobile, attempting, however, not to drive onto a raised median dividing the north-south lanes; nevertheless, the right front of Beckert's tractor struck the right rear of Merrell's car before the latter cleared the intersection. Beckert did not sound a horn. Merrell testified that he looked before entering the intersection but did not see Beckert's vehicle approaching from the south.

Beckert testified that upon impact, his wheels turned to the right and he was unable to turn back to the left. His tractor and trailer began to jackknife, and he went off the right shoulder of Route 48. He did not recall the course of his vehicle until it came to rest after a collision with plaintiff's vehicle which was approaching the intersection from the north on Route 48. He did not recall what he did to control his vehicle insofar as braking or steering.

State Trooper Riech traced the course of Beckert's vehicle by examining tire tracks. He was not able to determine if Beckert's vehicle was sliding or whether the brakes had been applied. From his testimony the jury could find that Beckert's tractor-trailer, after the first impact with Merrell's automobile, went onto the east shoulder of Route 48, some 60 feet north of the south edge of the intersection, then proceeded approximately 120 feet on the east shoulder and in the east ditch before reentering the pavement of Route 48. It then angled across the northbound lane and an 11-foot median dividing the northbound and southbound lanes, across the southbound lane, collided with the Drollinger vehicle which had apparently been driven onto the shoulder and came to rest in a ditch on the west side of Route 48. The total distance from the south edge of the intersection to the point where Beckert's vehicle came to rest was approximately 200 feet. Drollinger suffered severe injuries and could not remember the collision.

As noted, the jury returned a verdict in favor of Drollinger and against the defendants Beckert, McBride's Express and Merrell. The jury also returned a verdict against Merrell in favor of McBride's Express on its cross claim for property damage.

A case strikingly similar on its facts is Martin v. McCarry, 2 Ill. App.3d 650, 275 N.E.2d 897 (4th Dist. 1971). In Martin a tractor-trailer truck was proceeding in a northerly direction on a two-lane highway while Fanning was driving a bus southerly on the same highway. One Bartok backed his automobile from a driveway into the northbound lane in front of the McCarry tractor-trailer. The road was snow-packed and slippery. The vehicle operated by McCarry jack-knifed when the brakes were applied and struck Bartok's automobile; it then crossed over the southbound lane and struck the bus which had been driven onto the shoulder of the highway.

The bus driver, Fanning, sued Bartok, the driver of the automobile and McCarry, the operator of the tractor-trailer truck and its owner and obtained a verdict and judgment against the truck driver and its owner, but not against the automobile driver. The operator and owner of the truck sued Bartok, the operator of the automobile, and recovered for personal injuries and property damage respectively. In answer to the contention that the verdicts were inconsistent the court stated:

"There can be little argument but that the truck struck the automobile. The physical facts indicate just that and the picture of the car portrays it. It is not unreasonable to conclude that the jury decided that Bartok violated his duty to the truck driver and the truck owner by having his car stationary in the truck's lane of traffic and that in so doing his conduct was not that of a reasonable prudent person. It then concluded that there was little or no way, road conditions considered, that the truck could have avoided hitting the automobile and that their damage was directly attributable to Bartok.

There was considerable divergence in the testimony concerning the truck's speed as it approached the automobile. Even though there was no way for the truck to miss the automobile, the jury might well have held that the truck driver was breaching his duty to others on the highway in driving too fast, in not seeing the automobile in time, or in not having proper control over his truck so as to keep it in his own lane of traffic. The evidence is undisputed that the truck was in the lane of traffic belonging to the bus and the several complaints so charged. When the truck crossed the center line then and invaded the territory belonging to the bus, the truck driver breached a duty to the occupants, the owner and the driver of the bus. We think that there is just reason for believing that the jury in this case sorted the wheat from the chaff and followed the precise instructions of the court with a degree of perspicacity and understanding for which it might properly be commended. Where different duties are breached in the same occurrence, different and what appears to be perverse verdicts may properly result. We think it clear that these verdicts were justified upon responsible evidence in this record and that they are not ...

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