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Matesevac v. County of Will

OPINION FILED FEBRUARY 6, 1981.

MARILYN MATESEVAC, PLAINTIFF-APPELLANT,

v.

THE COUNTY OF WILL ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Will County; the Hon. THOMAS EWERT, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The present action arose as a result of an automobile accident on March 5, 1976, in rural Will County. The plaintiff, Marilyn Matesevac, was a passenger in one of the autos involved in the accident, while the individual defendant, Will County Deputy Sheriff Raymond Gleason, was the driver of the other auto involved. At the time of the accident, Deputy Gleason was on duty for the sheriff's department of Will County. In the negligence action the jury returned a verdict in favor of the defendants. From the judgment entered upon that verdict, plaintiff Matesevac now appeals. She argues that the jury verdict was against the manifest weight of the evidence; that the court erred in certain evidentiary rulings and in the instructions to the jury; and that certain conduct on the part of defense counsel constituted reversible error.

The record discloses that on March 5, 1976, plaintiff Marilyn Matesevac and one Dale Judevine had gone to look at a farmhouse in rural Will County which was for rent. Matesevac and Judevine, who were living together at the time of the accident, had gone to view the farmhouse with an interest in possibly renting it. Judevine was driving the auto, and Matesevac was the front seat passenger. They had viewed the farmhouse and were returning, driving south on Weber Road. Deputy Sheriff Gleason was driving east on Airport Road. Both roads are two-lane blacktop roads, Weber Road running north-south and Airport Road running east-west. Airport Road is the preferential highway, and at the intersection of the two roads there is a stop sign for vehicles on Weber. There is also a "Stop Ahead" warning sign on Weber Road prior to the intersection. The Judevine auto, with Matesevac as passenger, was approaching the intersection on Weber Road.

It was about 6:30 p.m. on March 5, 1976, as the autos approached the intersection. It was dusk and the road was dry. Deputy Gleason's auto approached the intersection at about 55 miles per hour, and Gleason testified that he had observed the headlights of an auto, the Judevine auto, proceeding southbound on Weber Road. When he first observed the approaching auto it was between one-half and one-quarter mile from the intersection. He next noticed the vehicle when it was approximtely 30 yards from the intersection. The Judevine auto did not stop at the stop sign on Weber Road but proceeded on into the intersection. Deputy Gleason's auto collided with it, doing considerable damage.

Marilyn Matesevac was seriously injured in the accident. Gleason told two officers investigating the accident that he did not realize that the other auto was not going to stop at the stop sign until too late to attempt to avoid the collision. The views between the two vehicles were unobstructed, there being only open fields without obstruction by crops or buildings. The posted speed on Airport Road was 55 mph. Other pertinent facts will be brought forth within the discussion of the issues raised on appeal.

The plaintiff's theory of recovery was that Deputy Gleason was negligent in failing to keep a proper lookout and in failing to reduce speed, even if Judevine was also negligent in failing to stop at the stop sign. The case was given to the jury, and it deliberated for approximately five hours without being able to reach a verdict. The jury informed the court that it could not arrive at a unanimous verdict and requested that a hung jury be declared. Instead, over counsel's objection, the court gave Illinois Pattern Instructions, Civil, No. 1.05 (2d ed. 1971), the deadlocked jury instruction. Within two hours, the jury returned its verdict in favor of the defendants Gleason, County of Will and the sheriff's department. The jury made one specific finding, that plaintiff Matesevac was not guilty of any contributory negligence.

The first issue raised is whether the jury's verdict for the defendants was contrary to the manifest weight of the evidence. We find the jury's verdict to be amply supported in the record and, therefore, there is no basis for a reversal premised upon the manifest weight issue. (Kofahl v. Delgado (1978), 63 Ill. App.3d 622, 380 N.E.2d 407; Valasquez v. Yellow Cab Co. (1975), 32 Ill. App.3d 934, 337 N.E.2d 365.) The plaintiff, in urging that we overturn the jury verdict, emphasizes the facts that Deputy Gleason had an unobstructed view of traffic approaching on Weber Road and, also, the fact that he did not hit his brakes or take other evasive action prior to the collision. Gleason testified that he tried to brake but did not have enough time to react, largely because he had not anticipated that the Judevine auto would run the stop sign. The plaintiff argues that the evidence in the record establishes a clear failure by Gleason to exercise proper care as he approached the rural intersection. It is contended that the evidence indicates that Gleason was negligent as a matter of law. Viewing all the evidence, we do not find Gleason's actions to be negligent as a matter of law. The evidence in the record supports a conclusion that Dale Judevine's action in failing to stop at the stop sign on Weber Road was a proximate cause of the accident.

A similar situation was presented in Kofahl v. Delgado (1978), 63 Ill. App.3d 622, 380 N.E.2d 407. There, the auto in which plaintiff was riding had entered upon a preferential highway after stopping at a stop sign. The defendant-driver, who had not seen the auto until it moved onto the highway, braked, but was unable to avoid colliding with the other auto. A jury verdict for the defendant was returned and the appellate court refused to reverse that decision. The court therein reviewed the applicable case law and statutory material pertinent to the issue.

"The duty of a driver at a stop sign where his road intersects with a preferential highway has been codified in section 11-904(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-904(b)). That section provides that such a motorist must yield the right-of-way to any vehicle which is approaching so closely on the roadway as to constitute an immediate hazard to his vehicle's moving across or within the intersection. Whether a driver was negligent in entering a preferential highway protected by stop signs is always a question of fact since there are no precise standards and the issue involves considerations as to relative speeds and distances of the vehicles [citations].

On the other hand, the party travelling on the preferential highway does not have an absolute right of way. [Citations.] He must keep a proper lookout [citations], observe due care in approaching and crossing intersections and drive as a prudent person would to avoid a collision when danger is discovered [citations].

In this case, a view of the evidence as a whole supports the jury's finding that the sole proximate cause of this accident was the negligence of Edgar Kofahl, the driver of plaintiff's vehicle. The evidence implies that he either grossly misjudged the speed of defendant's automobile and its distance from the intersection or totally failed to see its approach. From the testimony of Frankie Greathouse, it might be inferred that Mr. Kofahl's view of the defendant's vehicle was obstructed by Greathouse's car as it turned right. Regardless of which of these situations was present, plaintiff's driver was negligent in edging slowly into the intersection. By doing so, he created a situation which did not afford the defendant an opportunity to avoid a collision after discovering the danger.

We cannot find any proof of negligence on the part of the defendant in the record. Although defendant Delgado did not notice the car in which plaintiff was riding until it entered the roadway, this cannot indicate that she was not keeping a proper lookout or exercising due care in approaching the intersection since the proper scope of her lookout was for cars entering the highway. [Citation.] As a traveller on a preferential highway, she had a right to expect a car approaching along St. Thomas Road to obey the stop sign and yield the right-of-way as required by law. [Citation.] As was stated in the case of Hession v. Liberty Asphalt Products, Inc., 93 Ill. App.2d 65, 235 N.E.2d 17:

`If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted.' 93 Ill. App.2d 65, 74, 235 N.E.2d 17, 22.

The evidence establishes that defendant Delgado was keeping a proper lookout. She applied her brakes simultaneously with the entry of the Kofahl vehicle upon the highway. This was the earliest moment at which the danger could have been discovered since the vehicle had previously been stopped; however, at ...


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