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Terrell v. Lovelace

OPINION FILED OCTOBER 27, 1978.

DONALD TERRELL, PLAINTIFF-APPELLEE,

v.

JOSEPH LOVELACE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kane County; the Hon. PAUL W. SCHNAKE, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

The defendants appeal from a judgment entered against them in a personal injury action arising out of an automobile accident.

At the time of the accident the weather was clear and the pavement dry. The plaintiff was traveling south on Route 47, driving a pickup truck. The defendant, Lovelace, was traveling north on Route 47, driving an empty school bus. There was a yellow flashing light for north-south traffic on Route 47 and there was a red flashing light for east-west traffic on Keslinger Road, Route 47 thus having the preference.

At the time of the collision between the two vehicles the school bus was in the process of making a left hand turn from Route 47 onto the east-west road known as Keslinger Road. To the north of Keslinger Road, Route 47 rises about 12 to 13 feet, the crest of the elevation being about 400 feet north of the intersection of Route 47 and Keslinger Road. The speed of the plaintiff's vehicle is somewhat disputed. The defendant testified he felt the plaintiff was going "somewhere between 50 and 60 miles per hour as he approached the intersection." The plaintiff testified he was going about 40 miles an hour when he came over the crest of the hill. Kesler, a witness traveling behind the school bus going north, thought the plaintiff's speed was about 35 to 40 miles per hour. Carl, a witness traveling behind the plaintiff, going south, said the plaintiff was "going pretty slow." The school bus was 30 feet long and according to the Lovelace's testimony was in first gear at the time he began making his left turn and the bus would only go about 5 miles per hour in first gear. His speed at the time of making the turn was disputed and it was conceded even by the defendant, Lovelace, that he did not stop before making his left turn. Lovelace testified that he did not see the plaintiff's truck coming toward him at the moment he started his left turn and did not observe the plaintiff until after he had committed his bus to the turn. His theory was that the hill hid the plaintiff from his view at the point of the intersection. While Lovelace testified that he activated his left turn signal about 100 to 150 feet before entering the intersection, the plaintiff said the turn signal was not operating and the two eyewitnesses, Kesler and Carl, testified they did not see the left turn signal operating.

The plaintiff testified he first observed the school bus coming toward the intersection when he was "coming up the hill," presumably just north of the crest of the hill, at which time the bus was about 100 feet south of the intersection, traveling north, in the northbound lane. The bus was traveling somewhat slower than highway speed and no signal was given, but when the plaintiff was "almost at the intersection," he testified (about 100 feet away), the bus turned left in front of him.

The plaintiff testified he immediately applied his brakes but could not avoid striking the bus, the impact being just behind the right front door of the bus. There was evidence that the pickup truck was loaded beyond its stated capacity with cement blocks. The plaintiff sought and was granted a motion in limine to bar the defendant, Lovelace, from commenting on this fact or making any argument about it based on a statutory violation.

As a result of the collision the plaintiff suffered a permanent injury to his left wrist resulting in a loss of flexion — his flexion after complete healing being about 45 degrees as compared with a normal flexion of between 70 and 90 degrees.

After a jury trial the jury awarded the plaintiff the sum of $58,000 as damages.

In this appeal, the defendants contend the court erred in (1) not directing a verdict for the defendants on the ground that the plaintiff was guilty of contributory negligence as matter of law; (2) in admitting testimony regarding a certain experiment where the conditions of the experiment were not the same as those at the time of the accident; (3) that certain testimony of a State of Illinois highway engineer who testified in interpreting a drawing should not have been admitted because no proper foundation was laid; (4) that it was error to preclude the defendants from raising a statutory overweight violation by the plaintiff's truck; (5) that the jury should not have been instructed regarding future loss of earnings where the plaintiff actually sustained no diminution in wages after he returned to work, and (6) that the amount of the award was excessive.

• 1 The defendants' first contention is subject to a technical objection in that their oral motion for a directed verdict, made at the close of the plaintiff's case, was not renewed at the close of all the evidence. It has been held in numerous cases in this State that where the defendant, after a motion for a directed verdict is overruled, proceeds to present his defense on the merits and does not renew his motion for a directed verdict at the close of all the evidence, the motion is waived. In Langan v. Enos Fire Escape Co. (1908), 233 Ill. 308, 312, the court said:

"It is next contended that the court erred in refusing to direct a verdict of not guilty. But that question cannot be considered, for the reason that it was not preserved as one of law. The defendant, at the conclusion of the evidence for the plaintiff, requested the court to give an instruction directing a verdict of not guilty, and the court refused to give it, to which ruling the defendant excepted. The defendant, however, did not stand by the motion but proceeded to introduce evidence, which was a waiver and abandonment of the motion and request. [Citations.] The motion and request for an instruction were not renewed at the close of all the evidence, and there is no ruling of the court to be reviewed."

To the same effect is Reavely v. Harris (1909), 239 Ill. 526, 528, where the court said:

"The practice is well settled in this State that in order to preserve the question for review in this court, as a question of law, whether the evidence fairly tends to support the plaintiff's cause of action, a motion in writing for a directed verdict, accompanied by an instruction to find for the defendant, must be presented to the court by the defendant at the close of all the evidence, and it is not sufficient to make such motion and present such instruction at the close of the plaintiff's testimony, where, after the defendant's motion has been overruled, he proceeds to introduce proofs."

This rule was followed in Black v. Texas Co. (1928), 247 Ill. App. 301; Hoobler v. Voelpel (1927), 246 Ill. App. 69, and Drzewiecki v. McCaskill (1976), 41 ...


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