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Marynczak v. D & L Transport Co.

OPINION FILED MARCH 19, 1981.

JOHN MARYNCZAK, PLAINTIFF-APPELLANT,

v.

D & L TRANSPORT COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH GORDON, Judge, presiding.

MR. PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The plaintiff, injured in an accident on the Stevenson Expressway in Chicago, sued the driver of a disabled car which had blocked two lanes of the expressway, the driver of a truck which struck the rear of the plaintiff's automobile and the truck driver's employer. The jury returned a general verdict for all defendants and also by answer to a special interrogatory found the plaintiff guilty of contributory negligence. The plaintiff appealed contending that (1) the use of the special interrogatory was unconstitutional; (2) the general verdict and the answer to the special interrogatory were against the manifest weight of the evidence; and (3) the court erred in refusing to submit certain of the plaintiff's allegations of negligence to the jury for consideration.

The accident in question occurred Saturday, January 12, 1974, at about 6 a.m. on one of the three southwest-bound lanes of the Stevenson Expressway. A car driven by Otto Buttlar, one of the defendants, went out of control and stalled blocking the right two lanes. Both the plaintiff, John Marynczak, and Robert Sutter, another defendant, were traveling in the same direction. Robert Sutter is an employee of D & L Transport Company, the third defendant. Sutter's truck collided with plaintiff's automobile and plaintiff was injured. In light of the issues presented on appeal, only the testimony of the plaintiff, Buttlar, Sutter, Prentice Smith, an eyewitness to the accident, and Police Officer Stokes is relevant.

The plaintiff Marynczak testified that he left home about 5:30 a.m., January 12, 1974. He drove to the Stevenson Expressway, intending to take the Stevenson to Cicero Avenue. The day was cold and clear. "There was no fog or anything like that." The highway was "awful dry, was frozen dry." The traffic was light "all the way up." Indeed, when he got on the Stevenson there was no traffic whatsoever.

When the plaintiff entered the Stevenson Expressway he drove first in the right lane and then moved into the center lane. He was driving about 35 miles per hour; the maximum speed limit was 55 miles per hour and the minimum 40 or 45 miles per hour. Plaintiff noticed a station wagon on the right shoulder (on cross-examination he denied knowing whether the shoulder was wide enough for a car and said he did not know if the station wagon was on the shoulder or partly on the shoulder and partly on the expressway). As plaintiff continued driving west, he saw a man (Smith) walking on the right shoulder. Plaintiff next saw a car, about 8 to 10 car lengths in front of him blocking the middle and right lanes. The headlights were facing the right shoulder. Plaintiff did not know if the headlights were on; he did not see them. A man was motioning him to stop. Plaintiff had no trouble seeing either the car or the man. It was between daylight and dark outside.

When plaintiff saw the car and the man, he slowed down and stopped in the center lane about two car lengths from the car. The traffic was "awful light." After plaintiff stopped, some cars passed on the left. Plaintiff did not know how many cars passed because mostly he was watching the man but he was aware of vehicular traffic passing him in the left-hand lane. No traffic passed on the right.

When plaintiff stopped the car in the center lane he looked in the rear view mirror. He saw no vehicles behind him. Plaintiff, still in the center lane, put his car in park and took his seat belt off. He intended to get out to see if the man needed help. Plaintiff looked in the rear view mirror to determine if there was any traffic coming so he could open the door to get out. At that moment he saw a truck about two car lengths back in the middle lane coming straight at him. Plaintiff just grabbed the steering wheel and sat there because there was nowhere to go. The truck then hit plaintiff's car. The impact happened 25-30 seconds after plaintiff's car had stopped. At no time, even after the impact, did plaintiff's car make contact with the stalled car. His car was still a good car length away from it.

Plaintiff denied that he talked with any investigating police officers at the hospital. However, Police Officer Stokes testified that plaintiff told him at the hospital that an unknown vehicle stopped in front of him for some unknown reason, that he swerved, drove into the next lane to attempt to keep from striking the vehicle that was in front of him at which time the truck struck him. The trial court correctly instructed the jury that this testimony could not be considered with respect to any claims against Buttlar.

Buttlar testified both as a section 60 (Ill. Rev. Stat. 1977, ch. 110, par. 60) witness for the plaintiff and later in his own defense. When called as a witness for the plaintiff he testified that at 6 a.m. on the day in question he had been driving his car, a gray Chevrolet, in a southwesterly direction on the Stevenson Expressway. He was driving in the center lane at about 45 miles per hour. He had his headlights on. It was dark. The street lights were on and the visibility was good. The weather was extremely cold. The road was dry. There was very little traffic, nothing to his left or right. He did notice one car parked on the right shoulder of the road.

As he was driving along, he felt a terrific impact that spun his car around. After the car spun around, it stopped dead in the right and center lanes of the expressway, the headlights facing the right shoulder. It was two or three minutes after the car stopped before Buttlar got out of his car. In the meantime he stepped on the accelerator to get the car off the expressway but there was no response. He then put the car in park and turned his ignition key but discovered "it was dead." He saw that the headlights were out. He then noticed two headlights bearing down on him. He immediately got out and waved his hands so the driver would not hit him. He continued waving his hands until the headlights stopped about 25 feet from him. Buttlar then went to the hood of the car to see what was the matter. He did not thereafter see the two headlights. However he admitted that when he had his head under the hood he did not have the headlights under observation.

Buttlar did not put any flares out. He did not have any.

The impact had jarred the battery out of its saddle and the lead wire was jerked off one post. The steering apparatus had been smashed on the right side. The shaft was bent, and two rods were bent.

After Buttlar opened the hood of the car, he saw right away what had happened. He got a wrench to tighten the bolts and the lead wire and started to work on the battery. A man, presumably from the car parked on the shoulder, came over and helped. While Buttlar was working on the car, he heard cars going around in the left lane. No cars went by on the right shoulder. Buttlar and the man who was helping did at one point try to push the car when Buttlar's fingers were getting numb but they "didn't give it much effort."

About five or 10 minutes after Buttlar started working on the battery cable, a truck driver came over and told him there had been an accident. Buttlar's head was under the hood at that moment. He looked up and saw the lights of a car in the center lane of the Stevenson Expressway. The headlights were in the position where he had seen them before he started looking under the hood. He and the man continued working on the car until he got the battery hooked up. Once he got the cable back on, the car started and he drove it off the expressway onto the shoulder. While the car could then be driven, it was hard driving it because it was pulling to the right.

When Buttlar was recalled as a witness he testified that the running and mechanical condition of his car prior to January 12, 1974, was very good. He always tuned his car, changed the oil, put plugs in as needed and cleaned the battery and battery posts when they became sulfated. The battery was carried under the hood in a frame or saddle with a sort of steel wall around it about two inches high. He described the holding of the battery saying "on one end of that car is a protuberance that goes in, depressed in the battery, the battery is molded that way and on the other end is a loose lug with the same type of protuberance that goes into the battery. It depresses in the battery on the other end and that's about two inches from the bottom of the battery. There is a bolt, there is sufficient extension to that, it's a lug that goes into the depression of the battery on one end, that is a bolt held where you can put a bolt through and this bolt is screwed tight and to the car." The protuberance and the bolt hold the battery in the frame very securely. When the bolt is screwed in tight, the battery cannot move. He further testified on cross-examination that the battery was knocked loose.

Sutter testified that he was driving an empty tractor-trailer in the center lane of the Stevenson Expressway at about 6 a.m. on the morning in question. There was some traffic but very little. The road was dry but slippery. It was dusk, just becoming light. There was no haze but the ...


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