APPEAL from the Circuit Court of Putnam County; the Hon. PETER
J. PAOLUCCI, Judge, presiding.
MR. PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
On December 1, 1972, the deceased, Donald C. Malavolti, was killed when his car collided with a semi-tractor and trailer owned by defendant Meridian Trucking Company and driven by defendant Howard C. Burton. The plaintiffs, administrators of the Malavolti estate, brought a wrongful death action against Meridian, Burton, Pre-Fab Transit Company (Meridian's lessee) and J & L Steel Corporation, alleging that the defendants' negligence was the cause of Malavolti's death. After a trial by jury, verdict was rendered for the defendants. Plaintiffs' post-trial motions for a new trial or a judgment n.o.v. were denied, and the plaintiffs appealed.
At approximately 9:15 p.m. on the night of December 1, 1972, Donald Malavolti finished his day's work at the Consolidated Grain Company in Hennepin, Illinois, where he was employed. As he left the plant he was accompanied by a co-employee, Danny Cadwallader. Both he and Malavolti had just completed a 12-hour shift. Malavolti was going to drop off Cadwallader at the Sunoco Service Station on Route 26 in Hennepin that was owned by Cadwallader before he was to continue home. The night was clear and visibility was good.
Meanwhile, defendant Howard C. Burton had unloaded his semi-tractor trailer in Davenport, Iowa, and was heading east on Interstate 80. He was accompanied by Stanley Dickey, who was following Burton in a second semi-tractor trailer. Both were bound for the Pre-Fab terminal located above the Union 76 Truck Stop in Peru. Dickey, however, had been incorrectly informed by the dispatcher in Davenport that the terminal was located in Hennepin, and consequently took the Hennepin exit onto I-180. After driving through Hennepin twice in an unsuccessful attempt to find the Pre-Fab terminal, Dickey stopped at the Sunoco Station on Route 26 owned by Cadwallader, and inquired about the terminal's location. A telephone call was made to the Union 76 Truck Stop in Peru, and Dickey was informed that the Pre-Fab terminal was located there and not in Hennepin. While all this was occurring, Burton had driven to the Union 76 Truck Stop, and waited for Dickey to arrive. After Dickey failed to appear, Burton proceeded west on Interstate 80 to I-180 where he remembered seeing Dickey exit, and proceeded to Hennepin. Burton arrived at Cadwallader's Sunoco Station while Dickey was still there, and parked his semi-tractor behind Dickey's rig on the north shoulder of Route 26. Both rigs were facing west. Burton then informed Dickey that he knew where the Pre-Fab terminal was located, and told Dickey to follow him. Just as Burton and Dickey were returning to their rigs, Malavolti and Cadwallader arrived at the station, entering by the west drive.
While Malavolti and Cadwallader engaged in a short conversation, Burton and Dickey prepared to leave. Burton pulled around Dickey so that he could lead the way. At the trial Dickey testified that at this time all of the lights on Burton's rig were energized. This includes all lights on the front of the tractor (with the exception of the amber and red turn-signal flashers); all of the lights on the sides of Burton's flat-bed trailer (three lights, each regulation size and consisting of a reflector and an energized light, located in the front, middle and rear of the trailer); and all lights on the back of the trailer (stop lights, signal lights, and clearance lights). Burton, with Dickey following, then proceeded west on Route 26 until he came to O'Connor's Homestead, a restaurant located on the north side of Route 26 near that highway's intersection with Power Plant Road. It was sometime after Burton and Dickey left Cadwallader's Sunoco Station that Malavolti and Cadwallader finished their conversation. Malavolti then left the station by the east drive and headed west on Route 26, toward O'Connor's.
O'Connor's Homestead has two entrances on Route 26, an east entrance and a west entrance, located approximately 50 feet apart. When Burton arrived at the eastern entrance, he turned right into the restaurant parking lot, and proceeded through the lot to the west entrance, where he stopped with his cab facing south. After stopping, Burton rolled down his window and told Dickey (who had followed him into O'Connor's parking lot and was behind him) that he was going back the other way. Dickey testified that at this time all of the lights on Burton's tractor and trailer were energized, including his left turn flasher. Dickey also testified that as Burton informed him he was going back, Dickey looked into his "West Coast" side mirrors, which enabled him to see everything behind his truck, and he saw no traffic. He could see the Sunoco Station they had just left, but nothing else. The Sunoco Station was approximately a quarter mile from the place where the accident occurred.
After thus informing Dickey, Burton began to make a left turn into Route 26 out of O'Connor's west entrance. In order to keep his trailer out of a ditch on the south side of Route 26, Burton had the right front and rear wheels of his tractor on the south shoulder, with the cab facing east. His 40-foot trailer was stretched across Route 26 (which is approximately 20 feet wide), with the end of the flat-bed trailer being a few inches from the north side of the pavement. The trailer was in this position when Malavolti's westbound Opel automobile collided with it. Malavolti was dead on arrival at the hospital.
Sheriff Warren Calbow was the first police officer on the scene. Calbow testified that all of the lights on the Burton semitractor trailer were energized, as well as the tail lights of Malavolti's Opel. Calbow could not determine if Malavolti's headlights were on as the entire front end of the car was demolished. State Trooper Bradley Acuncius arrived shortly after Calbow. He also testified that all of the lights on both vehicles were energized. Danny Cadwallader, a witness for the plaintiffs, testified that the headlights on Malavolti's car were on when he left the Sunoco Station.
At the trial Acuncius testified that Burton told him that he did not see Malavolti's car until it was about 40-50 feet east of a speed limit sign located on the south side of Route 26 and it appeared to be increasing its speed. In an effort to determine how long it would take to get from the Sunoco Station to the point of impact Acuncius subsequently drove his squad car from the Sunoco Station's east drive to the point of impact, accelerating from a dead stop to the speed limit (45 m.p.h.). He testified that it took 23 seconds at normal acceleration, to travel this distance. In addition, it took four seconds to travel from the point Burton said he first saw the car to the point of impact. Acuncius further testified that there were no skid marks left by Malavolti's car.
On appeal from the judgment for defendant, plaintiffs raise four issues for our consideration: First, whether the trial court committed reversible error in giving defendants' instruction No. 10 (IPI Civil No. 60.01) to the jury, and if it did so err, was objection to the instruction waived, as defendants contend, by plaintiffs' counsel at the instruction conference so as to preclude review by this court; second, whether the trial court committed reversible error in giving defendants' instruction No. 11 (IPI Civil No. 60.01) to the jury; third, whether the trial court committed reversible error in allowing the driver of the defendant's semitractor trailer, Burton, testify as to what happened in the presence of the deceased in violation of the Illinois Dead Man's Act (Ill. Rev. Stat. 1975, ch. 51, par. 2); and finally, whether the jury's verdict for defendants is so contrary to the manifest weight of the evidence that it constitutes grounds for reversal.
Defendants' jury instruction No. 10 was as follows:
"There was in force, in the State of Illinois at the time of the occurrence in question a certain statute which provided that: `All motor vehicles shall, during the period from sunset to sunrise, or at any other time when visibility is so limited as to require the use of lights for safety, exhibit two lighted driving lamps showing white lights, or lights of a yellow or amber tint, visible for at least 500 feet in the direction the motor vehicle is proceeding.' If you decide that a party violated the statute on the occasion in question, then you may consider the fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence."
1, 2 The plaintiffs contend that it was reversible error to give this instruction regarding the deceased's possible contributory negligence in not having his headlights burning at the time of the accident because no evidence was given during the trial on the issue of whether or not Malavolti did in fact have his headlights energized. In support of this position the plaintiffs properly cite numerous Illinois cases that have held it to be "serious error to lead a jury astray by giving an instruction assuming there is evidence of a fact where there is none tending to prove such fact." (Darby v. Checker Co. (1972), 6 Ill. App.3d 188, 196, 285 N.E.2d 217, 222.) However, it is not reversible error for the trial court to give an instruction based upon a fact if there is some evidence given in support of that fact. In Hitt v. Langel (1968), 93 Ill. App.2d 386, 393, 236 N.E.2d 118, 122, the court said: "`Each party is entitled to have the court instruct the jury on his theory of the case, provided that there is an evidentiary basis for the instruction. "All that is required in order to justify the giving of an instruction is that there is some evidence in the record to support the theory set out in the instruction." Biggerstaff v. New York, C. & St. L.R. Co., 13 Ill. App.2d 85, 94, 141 N.E.2d 72'" (quoting Wrighthouse v. Brown (1964), 52 Ill. App.2d 191, 196, 201 N.E.2d 752, 754 (emphasis added)). From our reading of the record, there indeed was some evidence given during the trial to support the giving of the instruction. Dickey testified that before Burton pulled out of O'Connor's parking lot he looked into his mirror and could see no traffic behind him on Route 26. Burton told Trooper Acuncius that he did not see Malavolti's car until it was 40 to 50 feet east of the speed limit sign. Sheriff Calbow testified that he was unable to ascertain whether or not Malavolti's headlights were burning because the front end of his car was destroyed. It may very well be true that this evidence showing that Malavolti was driving without headlights is not very convincing, but what matters is not the probative value of the evidence but rather its existence as far as support for a jury instruction is concerned. The test is whether there is some evidence in the record to support the theory set out in the instruction. We feel that the evidence tendered meets the requirement of "some evidence," its probative quality notwithstanding. It is the province of the jury to decide how much weight this evidence is to be given.
In any event, the plaintiffs' argument that the trial court was in error in giving defendants' instruction No. 10 is in great part inconsequential because plaintiffs' counsel waived any objection to it at the instruction conference. The following discourse relating to defendants' instruction No. 10 took place between the ...