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Lode v. Mercanio

OPINION FILED SEPTEMBER 26, 1979.

GENE C. LODE, PLAINTIFF-APPELLANT,

v.

LOUIS S. MERCANIO ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES J. BRENNAN, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Gene C. Lode brought this negligence action against Louis S. Mercanio and John A. Buckles to recover damages for injuries he suffered when a collision occurred between a fire truck, in which he was a passenger, and two automobiles driven by the defendants. A lawsuit was also instituted against the defendants by James Pierce, the driver of the fire truck. Pursuant to the defendants' motion, the cases were consolidated. Thereafter, plaintiff Lode was granted leave to amend his complaint and to add as additional defendants the Village of Worth and James Pierce. That portion of plaintiff Lode's complaint relating to the Village of Worth and James Pierce was subsequently dismissed as Gene Lode was barred from asserting any common law right to recover damages from his employer or a fellow employee. Ill. Rev. Stat. 1977, ch. 48, par. 138.5.

Defendants Mercanio and Buckles also filed countercomplaints and third-party complaints against James Pierce and the Village of Worth, which were dismissed with prejudice prior to trial. At trial and at the close of all evidence, motions for a directed verdict were made by plaintiff Lode and the defendants. All motions were denied with the exception of the court's finding that Lode was free from contributory negligence as a matter of law. The jury in the Circuit Court of Cook County returned a verdict finding both defendants not guilty and answered a special interrogatory that the driver of the fire truck, James Pierce, was guilty of contributory negligence. The trial court entered judgment and denied the post-trial motions of Lode and Pierce for judgment notwithstanding the verdict and for a new trial.

Lode brought this appeal alleging that the trial court erred in denying his motions for directed verdict, judgment notwithstanding the verdict and for a new trial. Pierce is not a party to this appeal.

The collision involving the parties to this lawsuit occurred at the intersection of Harlem Avenue and Southwest Highway in Worth, Illinois. Harlem Avenue and Southwest Highway do not intersect at right angles; Harlem runs in a north-south direction and Southwest Highway runs in a northeast-southwest direction. Both streets have two forward lanes of traffic in each direction in addition to designated turning lanes.

The evidence shows that at approximately 8 a.m. on April 11, 1973, a Village of Worth fire truck, driven by Pierce, proceeded north on Harlem in response to a fire alarm. The fire truck was also occupied by Lode, who stood on the right rear, and Charles Templin, who rode in the cab of the truck. The two defendants, Mercanio and Buckles, were each stopped at a red light in the southwestbound lanes of Southwest Highway. Buckles was in the middle lane. To his left was a car in the left-turn lane and to his right was Mercanio.

The defendants testified that, while they were waiting for the traffic signal to turn green, they heard a siren. Through their rearview mirrors, they saw a squad car with its emergency lights operating, proceeding southwest on Southwest Highway. They also testified that when their light turned green, they attempted to make a passageway to permit the squad car to go through the intersection. Buckles pulled forward into the intersection and edged toward the right into Mercanio's lane.

The fire engine was simultaneously proceeding north on Harlem with its emergency lights, siren and air horn operating. It was in the left lane of northbound traffic as it approached the intersection of Harlem and Southwest Highway. There were no northbound vehicles directly in front of the truck but cars were traveling ahead of the truck in the right-hand northbound lane. As the fire truck proceeded into the intersection, it swerved to the right to avoid hitting Buckles' car. This maneuver failed and the fire truck collided with Buckles' car and then Mercanio's car.

Testimony at the trial concerning the view of the drivers, the speed of the vehicles as they entered the intersection and the color of the traffic signal when the fire truck entered the intersection was conflicting. Mercanio testified that his view of the Harlem Avenue northbound lanes was obstructed by the southwestbound cars on Southwest Highway in the two lanes to his left. Buckles could not remember if his vision was obstructed but testified that when the traffic signal for Southwest Highway vehicles turned green, he did look at the traffic on Harlem and it was standing still. Neither defendant saw the fire truck prior to the impacts.

Pierce testified that, when he was 50 feet from the intersection, there was no movement. He further stated that it was hard to see the vehicles at the northeast corner of Southwest Highway and first observed the defendants' vehicles moving when he was a quarter to halfway into the intersection. At that time, no other vehicles on Southwest Highway were moving.

The plaintiff admitted that he did not see Buckles' car prior to or during the collision, nor did he see the actual impact between Mercanio's car and the fire truck. Templin testified that he saw both defendants move when the front end of the fire truck was into the intersection near the northeastbound lanes of Southwest Highway. He stated that the intersection was clear of all traffic when the fire truck entered it.

Testimony regarding the speed of the vehicles prior to the collisions was also contradictory. Buckles testified that when the light turned green for Southwest Highway traffic, he proceeded at a speed of five to eight miles per hour while attempting to edge into the right lane of southwestbound traffic ahead of Mercanio, and that he never accelerated. Mercanio stated that he attained a speed of five miles per hour but stopped either before or at the time of the impact between the fire truck and Buckles' car. Pierce stated that the car driven by Buckles accelerated rapidly and was going about 15 miles per hour at the moment of impact. He did not know whether Mercanio was moving or stopped at the time of impact.

It is undisputed that the fire engine had attained a maximum speed of 40 to 45 miles per hour as it proceeded north on Harlem. However, Pierce and Lode testified that the truck slowed to a speed of 20 to 25 miles per hour as it neared the intersection. Templin said the fire truck slowed down, but he could not estimate its speed.

Beverly Balis, a disinterested witness, testified that she was stopped in the left-turn lane of Southwest Highway at Harlem facing northeast. While waiting for the red light to change, she heard a siren, turned her head to the right and saw the fire engine approaching the intersection. She could not recall whether the fire truck had slowed down before entering the intersection, but testified at trial that it was just about entering the intersection when the light for Southwest Highway traffic turned green. Ms. Balis, on cross-examination, stated that she had given a statement to the Worth ...


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