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Didier v. Jones

OPINION FILED JUNE 15, 1978.

ARNOLD C. DIDIER ET AL., PLAINTIFFS-APPELLANTS,

v.

JAMES W. JONES ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 17, 1978.

This suit is the result of a multivehicle collision in which plaintiff, Arnold Didier (Didier) was injured; he seeks to recover damages for those injuries, and plaintiff, Virginia Didier, his wife, seeks to recover for loss of consortium.

The collision occurred on Route 21 (also known as Milwaukee Avenue), between County Line Road and Deerfield Road, in Lake County. In the area of the occurrence Route 21 is a four-lane highway running in a generally north-south direction, two lanes in each direction. The speed limit on Route 21 is 55 m.p.h. in the area of the occurrence.

On the west side of Route 21 in the area of the occurrence, a housing project known as Inverrary Quadrominiums was under construction. The Inverrary site was owned by defendant, R.H. Markus & Associates, Inc. (Markus); it was also acting as a general contractor in charge of construction activities at the site. The sole means of ingress and egress to the Inverrary site was by an access road which was under construction on the date of the occurrence. This access road ran in a westerly direction from the point where it intersected Route 21.

The access road was being constructed by defendant, Skokie Valley Asphalt Co. (Skokie Valley). On the date of the occurrence, employees of Skokie Valley were engaged in the laying of a gravel or stone subbase on the access road. Gravel used in the laying of this subbase was being delivered to the site in large semi-trucks with dump trailers, owned by or leased to defendant, Terra Cotta Truck Service, Inc. (Terra Cotta). Defendant, Russell J. Haderly (Haderly) drove one of the trucks for Terra Cotta; another one of the Terra Cotta trucks was leased from defendant, Bruce Bates, and was driven by defendant, James W. Jones (Jones).

On the east side of Route 21 across from the Inverrary site was a building known as the Sale Barn, which housed a retail antique business. Ingress and egress to the Sale Barn was via a driveway ("the south driveway") which intersected into Route 21 directly across from the access road to the Inverrary site. One could also exit from the parking lot of the Sale Barn by means of another driveway ("the north driveway") which intersected Route 21 approximately 80 to 90 feet north of the south driveway.

Prior to and at the time of the occurrence, Didier owned and operated a scavenger business. In conducting this business he owned and was driving at the time of the occurrence in question, a Diamond-T truck manufactured by defendant, White Motors Corp. (White). The collision occurred during the late morning hours of November 29, 1972. The weather was cool but dry; visibility to the south from the area of the occurrence was approximately one half mile and to the north approximately one quarter mile. The road was in good repair and generally flat and straight, and free from snow and ice.

Prior to the jury trial in this case, the trial judge on the motion of White struck counts XI and XII of the amended complaint and dismissed White as a party defendant. Defendants, Bruce Bates and Marlis Construction Co. (the sales and advertising corporation of Markus) were also dismissed out of the case. The jury rendered a verdict against plaintiffs and in favor of all remaining defendants. In the special interrogatory submitted to it, the jury found that Didier was not free from contributory negligence. The trial judge entered judgment on the jury verdict and denied plaintiffs' post-trial motion. Plaintiffs appeal from the order dismissing White as a party defendant, and from the judgment for defendants entered on the verdict and the order denying plaintiffs' post-trial motion.

The occurrence testimony presented at trial may be summarized as hereafter set forth. Didier stated that he was operating his Diamond-T garbage truck north on Route 21, in the far right hand lane; he was traveling at a rate of speed of between 40 and 45 m.p.h. As he approached the Inverrary site he saw the truck operated by Haderly in the south driveway of the Sale Barn with its tail end close to the edge of Route 21; he first observed Haderly's truck when he was about 50 feet south of the south driveway. He looked to his left and observed a car in the inside northbound lane next to his truck. He then looked again toward the south driveway and saw that Haderly's truck had begun to move westerly. Immediately he hit his brakes but as he did so the tail end of Haderly's truck crashed into the right side of the cab of his truck. Didier had no recollection of any subsequent events until he woke up in the hospital.

In an evidence deposition, read to the jury at trial, Mrs. Lillian Naussner testified that at the time of the occurrence she was driving a black Buick Le Sabre, northbound in the inner lane of Route 21; she estimated her driving speed to be 45 m.p.h.; she observed Didier's truck ahead of her in the right hand northbound lane. As her car began to overtake Didier's truck, she heard and felt an impact at the right rear of her car. The impact knocked her car to the right and out of control, through a wooden fence and into a tree. Prior to the impact she did not observe any vehicles entering into the northbound lanes of Route 21 from the west side of Route 21. Following the accident, she left her car and returned to Route 21 where she observed a truck facing north on Route 21 north of where the impact took place. On cross-examination she testified that the damage to the garbage truck was on the driver's side.

In an evidence deposition, also read to the jury at trial, James Oehmke testified that at the time of the occurrence he was in his car proceeding to exit on to Route 21 through the south driveway of the Sale Barn. At this time Haderly's truck pulled directly from the west side of Route 21 to the east side, into the parking lot. The witness' car was facing west and the truck was facing east; the vehicles were about 15 feet apart, and the truck blocked the witness' view to the south on Route 21. The tail end of the truck was about six or seven feet into the parking lot from the edge of Route 21. The witness stated that subsequently the truck backed on to Route 21; the witness then heard a crash and observed a garbage truck, smashed in front pass by him. He did not actually see Haderly's truck strike the garbage truck. He saw Didier's truck stop, straddling the middle two lanes and observed Didier lying on the pavement, to the left of his truck. The witness observed damage to the right side of Didier's truck. He also at this point observed a black Buick facing north on a grassy area on the east side of Route 21. The witness did not observe any other truck in the area.

Defendant Jones testified that at the time of the occurrence he had just delivered a load of gravel to the Inverrary site. He observed another Terra Cotta truck in the driveway on the east side of Route 21 and recognized the driver as Haderly. Jones drove his truck directly across the two south bound lanes of Route 21 and made a 90 degree turn north into the northbound lane, traveling at about 5 to 10 m.p.h. As his truck entered the extreme right hand northbound lane he observed a black car proceeding north veer into the southbound lane, then enter the northbound lane in front of his truck. He heard a noise and then felt an impact. He left his truck and observed Didier's garbage truck to the left rear of his truck.

Defendant Haderly testified that at the time of the occurrence he had arrived at the Inverrary site with a load of gravel. He pulled into the driveway on the east side of Route 21 because Jones already had his truck on the job site. The tail end of his truck was approximately 15 feet from the pavement of Route 21. He left his truck and walked to the west side of Route 21. When he saw Jones' truck leaving the job site, he returned to his truck. He was in the cab of his truck for several seconds and then heard a collision; his truck never moved from its parked position. Haderly ...


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