APPEAL from the Circuit Court of Marion County; the Hon.
GEORGE W. KASSERMAN, JR., Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 26, 1980.
This action was brought by plaintiff, Charles Comper, in the Circuit Court of Marion County to recover damages arising out of a motor vehicle collision allegedly caused by the negligence of defendant, Ralph Jones. The jury returned a verdict in favor of plaintiff in the amount of $50,000 upon which judgment was entered. From the denial of his post-trial motion, defendant appeals.
The accident occurred on Thanksgiving day on Green Street Road near Salem shortly after plaintiff, who was driving a tractor with a homemade trailer attached thereto, had made a left hand turn from the southbound lane of Brewery Hill Road onto the eastbound lane of Green Street Road. Defendant's vehicle, a 1975 Cadillac, had been proceeding in an easterly direction on Green Street Road when it struck the left rear portion of the homemade trailer. As a result of the collision, plaintiff suffered personal injuries and his tractor and trailer were extensively damaged. At the time of the accident, the pavement was dry and there were no obstacles obstructing the vision of the drivers.
As much of the testimony concerning the occurrence of the accident is in conflict, it is necessary to recount the testimony of the participants and various eyewitnesses. Mr. Comper testified that after finishing his Thanksgiving dinner he drove his tractor and trailer attachment to a wooded area where he cut down two birch trees and loaded the cut up pieces from one of the trees onto the trailer, which was not equipped with any lights or reflectors. Noticing that it was "getting fairly late," Comper realized that he "better get home" because he did not want to drive on Green Street Road in the dark. Although he stated that the sun was still shining brightly, he turned on the headlights, rear flasher and taillights of the tractor and proceeded onto Brewery Hill Road in the direction of Green Street Road. At the intersection of the two streets, Mr. Comper stopped at the stop sign, looked both ways, and observed Jones' vehicle by a bridge on Green Street Road, which bridge was approximately 800 feet west of Brewery Hill Road. He then turned left onto Green Street Road noticing that the flashing lights of the tractor were operating properly. Thereafter, according to Comper, "everything went blank" until he found himself in the emergency room of the hospital.
Mr. Comper estimated the distance from the ground to the top of the rear caution light on the tractor as 56 inches and further estimated the maximum speed of the tractor without a load as 20 miles per hour. The trailer was approximately 8 feet 4 inches long, 5 feet 2 inches wide and 2 feet deep. Comper testified that the wood was piled "no more than two feet off the bed." Over objection of defendant's counsel, Comper testified that at the time of the accident a red flag was attached to the rear of the trailer.
Lola Mildred Comper, plaintiff's wife, testified that she went looking for her husband on Green Street Road because it was "near sundown" and her husband should have already returned home. She arrived at the scene of the accident after the ambulance had arrived to take her husband to the hospital.
Ralph Jones testified that he attended Thanksgiving dinner at the home of his sister in Coulterville. At 4:20 p.m. he and his parents left Coulterville and headed towards their home in Salem. The accident occurred approximately 59 miles from the sister's residence.
Jones indicated that the headlights of his automobile were on as he drove east on Green Street Road approaching the Brewery Hill Road intersection. He was apparently traveling within the speed limit when he suddenly saw what appeared to be a stationary homemade two wheel trailer which had been left in the roadway without any lights. The bed of the trailer, according to Jones, was approximately 2 1/2 to 3 feet off the ground and was loaded with wood in the shape of a pyramid 4 to 5 feet high. Jones testified that he first saw the trailer within three seconds of impact. He intended to "get away from the trailer and pull around it," but hit the rear of the trailer as he swerved to the left while applying the brakes "with everything he had." The speed of defendant's automobile at the time of impact was approximately 35 to 45 miles per hour.
Jones did not see the tractor prior to the accident and first observed it rolling off the roadway from the force of the collision. He noticed that the headlights and a rear yellow light on the fender were on, but indicated that the yellow light was not flashing. Jones did not see a red flag at the scene of the accident.
Olen Hiltibidal and Katherine Ann Hiltibidal were driving south on Brewery Hill Road behind plaintiff's tractor and trailer. Olen testified that he first noticed the tractor when he saw its flashing yellow light one block in front of him on Brewery Hill Road. As there was a slight curve in Brewery Hill Road, Olen observed the flashing light from "a slight angle to the left." He did not realize there was a trailer until plaintiff started to turn left onto Green Street Road. Apparently, Olen saw a red flag before he saw the trailer. He testified that when he first saw the wagon none of the materials piled therein blocked his view of the tractor's yellow light.
When Olen stopped at the intersection, he observed the tractor proceeding eastbound on Green Street Road at a speed of 8 to 10 miles per hour. The sideboards of the trailer did not obstruct his vision of the tractor's lights and he was able to see the glow of the headlights.
As Olen turned his head to the right, Katherine, then his fiance and now his wife, yelled "Oh, no. He isn't going to make it." Olen quickly turned to his left and witnessed the collision. According to Olen, defendant's car pulled to the center of the road as if to pass plaintiff's vehicle and then swerved back to the right and hit the trailer. Olen was not certain whether defendant was trying to pass or merely avoid the trailer, but assumed that defendant was attempting to pass to the left side of the vehicle. Olen indicated that at the time of the collision a car had been approaching on Green Street Road from the opposite direction. Following impact, the wagon appeared to stay in place while the tractor "made a sharp right turn, went down the ditch in an embankment, through a fence and veered off at an angle, left the roadway completely." Plaintiff was thrown from the tractor and was found in the ditch.
Olen also testified that immediately prior to the accident, defendant was driving at a speed of 45 to 55 miles per hour. In his opinion, it was "dusky dark" outside and "you needed your lights on."
Katherine testified that she initially saw a flashing yellow light one block directly south of her husband's vehicle on Brewery Hill Road and believed it belonged to a city truck. As she and her husband drove closer to the light, she realized that it was attached to plaintiff's tractor and that the tractor was towing a wagon which had a flag at its end. She noticed that logs were piled in the wagon but claimed that they did not at any time block her vision of the yellow tractor light.
Soon after plaintiff made the left turn onto Green Street Road, she saw defendant's car approach the trailer from behind. According to Katherine, it appeared that defendant was trying to "go around" the trailer; however, he pulled back into the eastbound lane of traffic as a car approached from the east. He then hit the trailer in the back. Katherine ...