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Burroughs v. Mcginness

OPINION FILED AUGUST 24, 1978.

DONALD C. BURROUGHS, PLAINTIFF-APPELLANT,

v.

RICKY MCGINNESS, 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:

This appeal brought by plaintiff-appellant, Donald Burroughs, arises from a negligence action involving a rear end collision. The trial court of Madison County entered judgment on the jury verdict of not guilty returned in favor of the defendant.

The issues presented for review are: (1) whether the jury's verdict was against the manifest weight of the evidence; and (2) whether the court erred in instructing the jury.

On a dark, wet evening, November 25, 1972, at approximately 6 p.m. a 1968 Javelin driven by the defendant Ricky McGinness, age 17, with Richard Adams, age 12, riding as passenger came onto U.S. Route 40 in Collinsville, Illinois, from Illinois Route 157, which merges into Route 40. Traveling west in the right hand lane the defendant collided with the rear end of a 1969 Buick Riviera operated by plaintiff, Donald Burroughs, with Barbara Burroughs, his wife, riding as passenger. It was stipulated that the plaintiff's injury was a result of the collision.

The defendant in his deposition, and when first examined by plaintiff's attorney at trial, contended that he did not see the plaintiff's car until he was 50-75 feet away from it. However, on cross-examination he stated that he misunderstood the question; he actually noticed the plaintiff's car when going down a hill while plaintiff's car was going around a curve ahead, but he did not start braking until he was 50-75 feet from the plaintiff's car. The defendant stated that he was traveling at 35-40 m.p.h. and he began braking because he thought the plaintiff's car was stopped. Subsequently, he stated that he did not know the car was stopped. He testified that he could see cars for one-half to three-quarters of a mile from the top of the hill on Route 157 but the curve in the road obstructed his vision to a certain extent. However, the defendant acknowledged that there were no obstructions on Route 40 near the K-Mart store where the accident occurred. The defendant stated that he saw that the plaintiff's taillights were illuminated but he did not see any brake lights or turn signal. Defendant further acknowledged that the reason he did not see the plaintiff's car and begin to brake sooner was because he was distracted by the confusion of the traffic to the left of him at the intersection of Route 157 and Route 40. He also testified on direct examination that the car he hit in the rear was approximately 100 feet from the K-Mart store's entrance.

The plaintiff, Burroughs, testified that he did not see defendant's car until after the impact. He contended that at the time of the accident he was not stopped but had slowed down to a speed of 8-10 m.p.h. because the car in front of him had its right turn signal on. He also testified that he was moving slowly because the pavement was wet and he was preparing to turn into the driveway of the K-Mart store. However, the plaintiff contended that he had not begun to make his turn onto the K-Mart driveway. Although he testified his wheels were slightly turned, he also stated that he was 25 feet from the K-Mart entrance when the accident occurred. Plaintiff believed he had his turn signal on but could not specifically remember because it was a natural reflex for him to activate his turn signal.

The plaintiff's wife, Barbara Burroughs, who was a passenger in plaintiff's car at the time of the accident, testified that it was dark out and that the lights on their car were on. She further stated that she and her husband were going to turn into the K-Mart Shopping Center; however, they had not yet turned at the time of impact. Mrs. Burroughs also testified that after the collision her husband could not move so she helped him steer the car into the K-Mart parking lot and turned the motor off.

The record reveals that an ambulance was called and Mr. Burroughs was taken to St. Elizabeth's Hospital in Granite City. Since the accident the plaintiff has had back trouble which has required and will require in the future medical treatment and expenses.

• 1 The plaintiff in this appeal first contends the jury verdict is against the manifest weight of the evidence. We are aware that the jury verdict is to be given great weight. Nevertheless, when the jury returns a verdict which is not supported by the evidence it is the duty of the trial court or the reviewing court to act as a check upon the jury and reverse that verdict. (Thomas v. Lynch (1978), 59 Ill. App.3d 542, 375 N.E.2d 859; Glaze v. Owens (1968), 104 Ill. App.2d 172, 243 N.E.2d 13.) In light of general experience and common knowledge, the evidence before us reveals that the defendant was not attentive while driving and therefore, negligent. A driver approaching from the rear has the duty to keep a safe lookout and he must take into consideration the fact that he may be required to stop or slow his vehicle suddenly. (Glenn v. Mosley (1976), 39 Ill. App.3d 172, 350 N.E.2d 219; Apato v. Be Mac Transport Co. (1972), 7 Ill. App.3d 1099, 288 N.E.2d 683; Barnash v. Rubovits (1964), 46 Ill. App.2d 409, 197 N.E.2d 134.) Furthermore if he does not maintain a proper lookout for traffic ahead he is negligent. Glenn v. Mosley.

The defendant testified that he could see the cars traveling in his lane for a distance of one-half to three-quarters of a mile, but the rain prevented him from determining if the cars were moving or stopped. The plaintiff testified that he was not stopped in the road, but rather was traveling at a speed of 8-10 m.p.h. because the driver preceeding him was turning. The defendant was traveling at a speed of 35-40 m.p.h. and acknowledged that he did not begin to brake until he was only 50-75 feet from the plaintiff's car. Since the defendant saw plaintiff's car prior to the time he began to brake, he should have determined that he was gaining unduly on the plaintiff's car and slowed his vehicle accordingly. Also, due to the weather conditions and the prospect of turning traffic in a congested area preceding the plaintiff, the defendant should have anticipated that the plaintiff was moving slowly. The defendant has a duty to travel at a speed which would have provided an adequate distance between his car and the plaintiff's car, and which would have allowed the defendant to make a safe stop when the traffic ahead of him had stopped or slowed. The defendant testified that the merging traffic to the left of him at the intersection of Routes 157 and 40 was confusing. However, he also acknowledged that he had traveled through this intersection nearly 100 times before. The defendant also admitted that prior to his braking he was talking or looking somewhere else when he should have been watching the traffic in front of him.

• 2 We conclude that in light of these particular facts and the record before us, abundant evidence established the negligence of the defendant, McGinness.

The defendant contended that the plaintiff contributed to the accident by violating the "turn signal statute" (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-804(b)), which in itself can be considered some evidence that plaintiff was negligent. The alleged violation of the statute was the only evidence adduced by the defendant that the plaintiff was contributorily negligent. This evidence was presented to the jury through defendant's instruction 4A, the statutory violation instruction (Illinois Pattern Jury Instructions, Civil, No. 60.01 (2d ed. 1971)), which incorporated the "turn signal statute" and stated:

"A signal of intention to turn right when required must be given continuously during not less than 100 feet traveled by the vehicle before turning within a business district." (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 11-804(b).)

"Any turn signal when required shall be given either by means of the hand and arm or by an electric turn signal device." (Ill. Rev. ...


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