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Finnegan v. Davis





APPEAL from the Circuit Court of Livingston County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.


Rehearing denied March 8, 1979.

This case presents the question of whether in a tort negligence action tried by a jury, the jury's answer to a special interrogatory finding the plaintiff's decedent not guilty of contributory negligence may be inconsistent with and, therefore, control over the jury's general verdict for the defendant.

We rule that it may under the unusual circumstances of this case, where under the evidence, the collision giving rise to the action could not have resulted from pure accident and must have been proximately caused by either plaintiff's decedent or defendant.

At issue is the application of section 65 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 65) which states:

"Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly."

A two-count wrongful death action was filed in the circuit court of Livingston County by plaintiff Paul J. Finnegan as administrator of the estate of his son, James W. Finnegan, who died following a collision between the motorcycle he was operating and a pickup truck being driven by defendant David L. Davis. Count I of the complaint alleged that defendant drove his truck in a negligent manner and count II alleged that defendant's actions or inaction were wanton and wilful. The jury was given two special interrogatories. One asked whether plaintiff's decedent had been guilty of contributory negligence, the other whether defendant was guilty of wilful and wanton conduct. The jury answered, "No" to both and returned a general verdict in favor of defendant.

A detailed statement of the evidence is necessary. The collision occurred sometime between 6:30 and 7:52 p.m. on August 19, 1976, on the Odell-Nevada Township Road in Livingston County. Defendant was eastbound, driving a 1970 GMC pickup truck. Plaintiff's decedent was westbound, driving a 1971 gold-and-white 100 cc Honda motorcycle, with Tom Mislich, Jr., as a passenger. The road is asphalt, basically straight, and has a speed limit of 55 m.p.h. In the area of the accident, the road is 18 feet 6 inches wide and has no center marking. There are no road defects and the dirt shoulder is flush to the road. One and one-half feet from the north edge of the road was a ditch, 3 to 3 1/2 feet deep, and beyond that was a bean field. To the south of the road was a corn field.

No one was able to pinpoint the exact location of the impact. In the area of the accident was a hillcrest, high enough to affect the visibility of both east and westbound traffic. Decedent's passenger, Tom Mislich, Jr., testified that he first observed the pickup truck as it came over the hillcrest. At that point, the motorcycle was going up the hill, no faster than 30 m.p.h., and was about a foot from the north edge of the road. The truck was in the middle of the road, going 80 to 85 m.p.h., and never moved from its course or changed direction. The time from observing the truck until impact was about one second. Mislich told plaintiff's decedent to "look out" and ducked behind him. On impact, he had a sensation of being thrown out to the side more than backward or forward. He did not think the motorcycle light was lit and did not feel the decedent apply his brakes or turn the wheel before impact.

At trial, defendant was called as a section 60 witness during the plaintiff's case. He testified that he thought he was driving 50-55 m.p.h. but he had not looked at his speedometer. He was going up the hill when he first saw the motorcycle "in a flash" and they met at the crest of the hill a split second later. He was certain that he was in the right lane and the motorcycle was in the center of the road. He could not estimate the speed of the motorcycle and could not recall exactly where in the road the impact occurred. He did not recall making an attempt to avoid the motorcycle.

It was stipulated at trial that in his discovery deposition, defendant stated that he told Sergeant Gragert, the investigating officer, that the motorcycle was in the left lane, its proper lane. Sergeant Gragert testified that on the evening of the accident, defendant told him he could not remember whether the boys were in the center or on their side of the road, and when he questioned defendant on August 24, 1976, defendant also could not recall the location of the motorcycle.

There was no evidence of braking or skid marks. Three sets of gouge marks were found near the top of the hillcrest, on the east side of the crest. All were located on the north or westbound side of the road. The westernmost set of marks were closest to the north shoulder at 3 feet 9 inches south of the north edge of the road. The middle set of marks was 4 feet 7 inches south of the north edge of the road and contained a very large, deep gouge which Sergeant Gragert testified indicated a fairly maximum engagement of some force. The easternmost set of marks was 6 feet south of the north edge of the road. There was a long east-west mark which Sergeant Gragert testified indicated movement. The total distance between the west and east gouge marks was approximately 5 feet 1 inch which also happens to be the length of the motorcycle. Sergeant Gragert testified that he assumed the marks were made by the motorcycle, although he did not definitely know which parts of the cycle made the marks. He stated that nothing on the truck could have caused the marks.

A rim mark, beginning lightly, commenced 50 to 55 feet east of the gouge marks. The mark was entirely in the north or westbound half of the road, beginning 6 feet 6 inches south of the north edge of the road and continuing 214 feet northeast until it left the road, went into the ditch and on into the bean field. It is undisputed that the rim mark was made by the pickup truck's left front or rear wheel rim. The left front tire of defendant's truck had a 3- to 3 1/2-inch cut and there was a similar hole in the left rear tire, so that both would have deflated very shortly after the damage occurred. The initial stopping place of defendant's truck was in a bean field about 500 feet northeast of the gouge marks and about 140 feet north of the north edge of the road.

Defendant's truck was damaged on the driver's side: the left front fender was crumpled, the left front light was broken out. There were rubber marks and dents along the side of the door which Sergeant Gragert testified indicated that the motorcycle remained in contact with the left side of the truck at or during the impact. The left rearview mirror was damaged and the door to a utility box on the ...

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