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Kofahl v. Delgado

OPINION FILED JULY 27, 1978.

MARY KOFAHL, PLAINTIFF-APPELLANT,

v.

LUCILLE DELGADO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Mary Kofahl brought an action against Lucille Delgado to recover for personal injuries sustained by her when an automobile in which she was a passenger collided in an intersection with an automobile driven by defendant Delgado. A jury trial resulted in a verdict in favor of defendant Delgado, upon which the trial court entered judgment. Subsequent to the denial of her post-trial motion, plaintiff commenced this appeal contending that the verdict is not supported by the evidence, that one of defendant's instructions should not have been given to the jury and that two instructions tendered by her were improperly refused.

All of the testimony at trial was offered on behalf of the plaintiff. Given all permissible inferences, it establishes the following.

The collision occurred near Granite City at the intersection of Illinois Route 3 and St. Thomas Road. Route 3 at that point is a four-lane divided highway, moving traffic north and south. Route 3's two northbound lanes are divided from its southbound lanes by a median. St. Thomas Road makes a T-intersection with Route 3 and is controlled by stop signs at its intersection with the northbound lanes of the highway. There is a gap in the median at the intersection so that automobiles emerging from St. Thomas Road may turn left and proceed south on Route 3. Their entry into southbound traffic is controlled by a yield sign.

Although it was December 2, the weather was nice and clear. The pavement of both roads was apparently dry and free of ice. At approximately 2 p.m., Lucille Delgado was driving her automobile northward on Route 3 at a speed of about 50 m.p.h. Her parents were passengers in the auto. She did not notice any traffic ahead of her or any cars on St. Thomas Road as she approached the intersection. Eventually, however, an automobile driven by Mrs. Kofahl's husband and in which she was a passenger pulled into Delgado's path as it headed towards the gap in the median. When the defendant saw this car starting from the right hand side of the highway, she applied her brakes and skidded a distance of 80 to 100 feet before the collision occurred in the northwest quadrant of the intersection.

The plaintiff, Mary Kofahl, was 81 years old at the time of the accident. She could not shed any particular light on the occurrence since she did not pay any attention to the streets or roads which her husband took prior to the collision.

Although defendant Delgado could not remember seeing anyone driving in front of her as she approached the intersection, such a person did exist in Frankie Wayne Greathouse. Mr. Greathouse testified that on the afternoon in question he was travelling north on Route 3 in the far right hand lane, preparatory to turning right or eastward on St. Thomas Road. He was under the impression, as was defendant, that the posted speed limit on Route 3 was then 65 m.p.h. As he neared the sign which indicated the upcoming intersection with St. Thomas Road, some 625 feet distant, he reduced his speed from 50 m.p.h. to about 40 m.p.h. and looked in his rearview mirror. He saw an automobile behind him, possibly in the same lane as he was in. As he approached the turn, he noticed an automobile stopped at the stop sign on St. Thomas Road, facing west. He then put on his turn signal and turned onto St. Thomas Road. As he turned, he saw the car at the stop sign edge out onto the highway at about 5 m.p.h. After traveling a car's length, Greathouse again looked in his rearview mirror and saw the collision occur.

• 1 It is well settled that if, as here, a trial court has sustained a verdict by denying a motion for a new trial, the reviewing court may not disturb the verdict unless it is against the manifest weight of the evidence. (Spankroy v. Alesky, 45 Ill. App.3d 432, 439, 359 N.E.2d 1078, 1081; Smith v. Trimmell, 28 Ill. App.3d 369, 328 N.E.2d 45; Moulton v. Shell Oil Co., 38 Ill. App.3d 524, 347 N.E.2d 825.) In order for a verdict to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. (Valasquez v. Yellow Cab Co., 32 Ill. App.3d 934, 337 N.E.2d 365; Gary v. Rogers, 104 Ill. App.2d 154, 243 N.E.2d 665; see also Bouillon v. Harry Gill Co., 15 Ill. App.3d 45, 301 N.E.2d 627.) Such is not the case here.

The plaintiff basically argues that the verdict is against the manifest weight of the evidence since it establishes that she was not contributorily negligent and that the collision was proximately caused by defendant's failure to keep a proper lookout and to reduce her speed to avoid a collision. We cannot agree.

• 2, 3 There is no quarrel concerning whether the plaintiff was contributorily negligent. It may be assumed that she was not since she was merely a passenger, who by law is not imputed with the contributory negligence, if any, of her driver. (Roth v. Nauman, 90 Ill. App.2d 44, 234 N.E.2d 346; Wilson v. Don LaCost, Inc., 20 Ill. App.3d 624, 314 N.E.2d 27; Illinois Pattern Jury Instructions, Civil, No. 72.03 (2d ed. 1971).) However, it is fundamental that she may not recover from defendant if her driver's negligence was the sole proximate cause of the collision. (Milis v. Chicago Transit Authority, 1 Ill. App.2d 236, 117 N.E.2d 401.) The jury obviously found this to be the situation here and we agree wholeheartedly.

Much has been said about the relative duties of drivers upon preferential highways and those upon nonpreferential highways controlled by stop signs.

• 4 The duty of a driver at a stop sign where his road intersects with a preferential highway has been codified in section 11-904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-904(b)). That section provides that such a motorist must yield the right-of-way to any vehicle which is approaching so closely on the roadway as to constitute an immediate hazard to his vehicle's moving across or within the intersection. Whether a driver was negligent in entering a preferential highway protected by stop signs is always a question of fact since there are no precise standards and the issue involves considerations as to relative speeds and distances of the vehicles (McHenry Sand & Gravel, Inc. v. Rueck, 28 Ill. App.3d 460, 328 N.E.2d 679; Garner v. Skafar, 45 Ill. App.3d 859, 360 N.E.2d 398).

On the other hand, the party travelling on the preferential highway does not have an absolute right of way. (Smith v. Bliss, 12 Ill. App.3d 514, 299 N.E.2d 576; McHenry Sand & Gravel, Inc.) He must keep a proper lookout (Reed v. Williams, 9 Ill. App.3d 742, 292 N.E.2d 426; Smith v. Bliss), observe due care in approaching and crossing intersections and drive as a prudent person would to avoid a collision when danger is discovered or by the exercise of reasonable care, should have been discovered (Oothoudt v. Woodard, 132 Ill. App.2d 203, 269 N.E.2d 511; Gettemy v. Grgula, 25 Ill. App.3d 625, 323 N.E.2d 628; Kirshenbaum v. City of Chicago, 43 Ill. App.3d 529, 357 N.E.2d 571).

In this case, a view of the evidence as a whole supports the jury's finding that the sole proximate cause of this accident was the negligence of Edgar Kofahl, the driver of plaintiff's vehicle. The evidence implies that he either grossly misjudged the speed of defendant's automobile and its distance from the intersection or totally failed to see its approach. From the testimony of Frankie Greathouse, it might be inferred that Mr. Kofahl's view of the defendant's vehicle was obstructed by Greathouse's car as it turned right. Regardless of which of these situations was present, plaintiff's driver was negligent in edging slowly ...


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