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Bentley v. Saunemin Township





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


Rehearing denied November 27, 1979.

On May 16, 1977, plaintiff Genevieve N. Bentley, administrator of the estate of Bonnie Ann Holzhauer, deceased, filed suit in the circuit court of Livingston County against defendants Saunemin Township, its highway commissioner, Livingston County, its superintendent of highways, and Doris Sexton, administrator of the estate of Gerald Holzhauer, deceased, seeking to recover damages for the death of her decedent which resulted from an automobile collision in Livingston County at an intersection of a rural Saunemin Township road and State Route 47 on July 27, 1975. Prior to trial, plaintiff voluntarily dismissed the suit as to defendant Doris Sexton, administrator. After a jury trial ending on May 23, 1978, the trial court entered judgment on a verdict for all defendants and subsequently denied plaintiff's post-trial motion. Plaintiff appeals.

Numerous errors are claimed by plaintiff. We need consider only her contention that the trial court should have granted her judgment notwithstanding the verdict as to the township defendants. Although the question is close, we agree with plaintiff that she proved as a matter of law that (1) her decedent was in the exercise of ordinary care at the time of the collision, and (2) negligence by the township and its highway commissioner was a proximate cause of the collision. Accordingly, as to those defendants, we reverse and remand directing the trial court grant plaintiff a judgment on the question of liability notwithstanding the verdict and hold a new trial to determine damages.

We need not consider any claim of error as to the judgment on the verdict entered in favor of defendants Livingston County and its superintendent of highways because we find no evidence of a breach on their part of any duty owed to plaintiff's decedent and no claim of error bore on the ability of plaintiff to do so. We affirm the judgment entered in favor of those defendants.

Plaintiff sued both the township and its highway commissioner and both the county and its superintendent of highways with both individuals being sued in their official capacity. All were charged with negligence in highway maintenance. Some confusion exists as to the proper defendant to sue when negligence in highway maintenance is charged against counties or townships. In Blazer v. Highway Commissioner (1968), 93 Ill. App.2d 89, 235 N.E.2d 13, the appellate court held the highway commissioner rather than the township to be the proper defendant to a suit of that nature involving township responsibility. No case has similarly defined the status of the county superintendent of highways. In any event, no objection has been raised here as to improper joinder. For convenience we will speak only of the highway commissioner when referring to township liability. Because some legislation speaks of responsibility concerning highways to be in the county board while other legislation speaks of responsibility being in the county superintendent of highways, we will speak separately of the county and its superintendent of highways.

Plaintiff's decedent was a passenger in an automobile driven by her husband, the decedent Gerald Holzhauer, who was also killed in the collision. The vehicle was traveling in a westerly direction upon the gravel surfaced township road and entered Route 47, a north-south highway, apparently without stopping. In the intersection a collision occurred between the Holzhauer automobile and one coming from the south driven by Patricia Ross.

• 1 In civil cases the question of whether a judgment should be entered for a party despite a contrary determination by a jury is governed by Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. Such a judgment should be entered when the evidence viewed in the light most favorable to the party obtaining the verdict could never stand. This is so even though slight evidence may favor the verdict. Walling v. Lingelbach (1976), 65 Ill.2d 244, 357 N.E.2d 530.

That plaintiff's decedent, a passenger, was in the exercise of ordinary care as a matter of law is not seriously disputed. Nor is it seriously disputed that some governmental entity was negligent in failing to clear a tree from the north side of the township road some 95 feet east of the intersection. The Illinois Department of Transportation or its predecessor had placed a stop sign designed to stop traffic coming from the direction where plaintiff's decedent was traveling as a passenger. The branches of the tree were shown by photographs to extend to the edge of the traveled portions of the road and to hang to the ground. Livingston County Coroner, Keith Von Qualen, testified that this tree prevented the stop sign from being "reasonably visible" to a driver approaching from the east until the driver was within 120 feet of the stop sign.

Defendants do point out that reports of police officers investigating the collision made no mention of any obstructions which they thought might have contributed to the collision and the officers testified that they would have reported such obstructions had they seen any. However, no officer testified to having tried to see the stop sign from an automobile when approaching the intersection from the east on the township road at a point east of the tree. The State of Illinois Department of Transportation Manual entitled "Signing of Road District and Township Highways" was shown to state in part:

"Special care should be taken to see that weeds, shrubbery, construction materials, and snow are not allowed to hide the face of any sign."

• 2 Dr. John Baerwald, director of the University of Illinois Highway Traffic Center, testified that road designers generally plan warning devices assuming a driver has a reaction time of 2.5 seconds. He stated that the average driver had a much faster reaction time but that the 2.5 seconds was used to insure safety. He testified that the National Safety Council considers an average reaction time to be .75 seconds. Dr. Baerwald testified that even assuming a .75-second reaction time, a driver approaching the intersection at 35 miles per hour would not receive enough warning if the sign did not become visible until the driver was within 120 feet of it. He also noted that the road was otherwise of a nature that 45 miles per hour would have been a safe driving speed. To have allowed a situation where a person driving at what would appear to be a safe speed, did not have sufficient view of the stop sign to make a timely stop after seeing it was clearly negligence as a matter of law.

The heart of the dispute as to whether judgment notwithstanding the verdict should have been entered against the highway commissioner turns upon whether the evidence proved as a matter of law that (1) he was under a duty to clear the obstruction from the right-of-way, and (2) his failure to do so was a proximate cause of the collision.

The highway commissioner maintains that the exclusive duty to provide for the visibility of the sign was placed by statute on the Illinois Department of Transportation. He relies upon the following ...

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