APPEAL from the Circuit Court of Boone County; the Hon. ROBERT
C. GILL, Judge, presiding.
MR. JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Pauline Grass and her husband Raymond J. Grass, appeal from a judgment entered on a jury verdict in a personal injury action resulting from an automobile accident in which Pauline Grass sustained serious bodily injuries. The jury rendered a general verdict in favor of the defendant, David Hill, and against the plaintiffs. The jury also answered a special interrogatory finding Pauline Grass guilty of contributory negligence. On appeal, the plaintiffs contend that the trial court erred in denying their post-trial motion for a judgment notwithstanding the verdict, or alternatively, for a new trial. They also assert that the trial court committed reversible error in instructing the jury and in refusing to admit into evidence the defendant's original answer.
The accident in question occurred at approximately 7:30 a.m. on May 10, 1976, at the intersection of Spring Creek Road and Shaw Road in Boone County. At the time of the accident both roads were two-lane rural highways, each of which had one lane for traffic in each direction. Spring Creek Road was a paved, through highway which ran east and west, while Shaw Road was a gravel road which ran in a north-south direction. On that particular morning, the weather was clear and the pavement was dry. At that time on Spring Creek Road, there were no signs indicating the presence of the intersection, nor were there any pavement markings prohibiting westbound vehicles from passing near the intersection. A photograph in evidence disclosed that the intersection was clearly visible from a distance of 400 feet. Pauline Grass, who had been proceeding westerly along Spring Creek Road, was in the process of turning left from Spring Creek Road onto Shaw Road when her vehicle was struck by that of the defendant. The defendant was travelling westbound in the eastbound lane of Spring Creek Road and was attempting to pass three westbound vehicles, including the Grass automobile, when he collided with the vehicle being driven by Mrs. Grass.
Pauline Grass testified that she did not remember what had occurred on May 10, 1976, at or before the time of the intersectional collision. She had no recollection of the accident or of being on Spring Creek Road on the day in question.
On the morning of the accident, Nancy Hennelly was travelling west on Spring Creek Road behind the Grass vehicle. At least one other car was behind the Hennelly automobile. When she first approached the Grass automobile, approximately three blocks east of where the collision occurred, the vehicle was travelling at 30-35 m.p.h. As the Grass vehicle continued westbound, it slowed down further to make a left turn. Hennelly, who was following the Grass automobile at a car length's distance, was aware that this vehicle immediately in front of her was going to turn, even though she did not remember or could not recall seeing any turn signals or brake lights activated on the Grass vehicle prior to its turn. Upon cross-examination, she stated that while she might have had some warning that the Grass vehicle was preparing to turn one way or the other, she did not recall any such warning. The Grass vehicle was proceeding slowly when it started to turn left at the intersection. The Grass vehicle was in the middle of the eastbound lane of traffic on Spring Creek Road when it was struck by the defendant's automobile. Hennelly stated that the defendant's vehicle, which had passed her a second before the accident, was proceeding quite a bit faster than the other vehicles, approximately 50-55 m.p.h. In addition, she did not recall seeing another car pass the Grass automobile before the intersection and did not recall hearing the sound of a horn before the accident.
Crystalline Wilcox was also westbound on Spring Creek Road on the morning of the collision. She testified she was travelling at 35 m.p.h. and was proceeding behind three other westbound vehicles. The Grass vehicle was the farthest from her; an unidentified vehicle was proceeding directly behind the Grass car, and the Hennelly automobile was travelling immediately in front of the Wilcox vehicle. As the Grass vehicle approached the intersection of Spring Creek and Shaw Roads, the car immediately behind it passed the Grass car. As that car passed the Grass automobile, Wilcox noticed that the Grass vehicle had its left turn signal on. Almost simultaneously she saw the defendant's car start to pass her; she applied her brakes and sounded her horn to warn the drivers of the Hill and Grass vehicles of the impending accident. The Grass vehicle was in the eastbound lane on Spring Creek Road and was attempting to turn from Spring Creek Road onto Shaw Road, when it was hit broadside by the Hill automobile. Wilcox did not see the Hill vehicle before it passed her. Wilcox's deposition testimony, which was introduced at trial, indicates that she was approximately 100 feet from the intersection when she first noticed the turn signal on the Grass car and saw the Hill vehicle alongside her in the eastbound lane of Spring Creek Road.
The plaintiff called the defendant, David Hill, as a witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) He testified that on the morning in question he was westbound on Spring Creek Road travelling at approximately 55 m.p.h. As he came over the crest of a hill, about 1500 feet east of the intersection of Shaw and Spring Creek Roads, he noticed three other westbound vehicles which were travelling at a slower rate of speed. At the pretrial deposition he estimated their speed to be 30-40 m.p.h. Two or three hundred feet before he reached the Wilcox vehicle, he signaled and pulled out into the eastbound lane to pass the string of cars. As he did so, he increased his speed to between 60 and 65 m.p.h. After he got into the eastbound lane, he removed his foot from the accelerator, and as he started to pass the vehicles he was proceeding at a constant speed of approximately 60 m.p.h.
As he was approaching the three vehicles, and seconds before he began to pass the Wilcox car, he noticed that the brake lights of the Wilcox automobile came on. On cross-examination, Hill stated he was in the eastbound lane attempting to pass when he first noticed the brake lights on the Wilcox vehicle. As he began to pass the Wilcox vehicle he observed that it began to pull over onto the shoulder of Spring Creek Road. When he looked back onto the highway, he saw the Grass vehicle beginning to make its turn south onto Shaw Road. At this point he was approximately 100 feet from the intersection and was travelling between 55 and 60 m.p.h. He applied his brakes and tried to swerve to miss the Grass vehicle, which was mostly in the eastbound lane of Spring Creek Road and partially onto Shaw Road. Hill estimated that the Grass car was travelling 5 or 10 m.p.h. when it began to turn left at the intersection.
Hill further testified that he checked all the cars in the group he was about to pass for any flashing lights, turn signals or brake lights. He did not see any turn signals coming from any of the three vehicles preceding him. However, Hill did state that at the scene of the accident he overheard Mrs. Wilcox say that Mrs. Grass had her turn signal on. He also stated that visibility was good on the morning of the accident and nothing in his automobile was obscuring his vision. He indicated that, prior to the accident, he was not familiar with the intersection in question. He usually took a different route on his way to classes at Rockford College; therefore, he had driven along Spring Creek Road only four or five times and was not aware of the intersection until after the collision. Hill had no problem, however, in finding the intersection in a photograph taken approximately 400 feet east of the intersection along Spring Creek Road. He maintained, however, that the view depicted in the photograph, which was introduced into evidence, did not represent the view he had of the intersection on the day of the collision.
John Hayes, deputy sheriff of the Boone County sheriff's department, testified that when he investigated the automobile accident, he observed skid marks on the pavement of the eastbound lane of Spring Creek Road. He stated that the skid marks measured 90 feet to the point of impact and were created by the Hill vehicle. Hayes also remarked that as he approached the intersection while travelling westbound on Spring Creek Road, he did not observe anything obstructing his view of the intersection. He further recalled that the defendant told him he did not see the Grass car turning in front of him.
It is axiomatic that the jury has the preeminent responsibility to ascertain whether the defendant exercised reasonable care, whether his failure to do so proximately caused the plaintiff's injuries and whether the plaintiff was free from contributory negligence. (Lode v. Mercanio (1979), 77 Ill. App.3d 150, 154.) While the determination of a defendant's negligence is ordinarily a question of fact to be submitted to the jury, it may be decided as a matter of law where all reasonable men, of fair understanding, would agree in their deductions from the evidence that the defendant was guilty of negligence in the operation of his vehicle at the time and place in question. Kocour v. Mills (1959), 23 Ill. App.2d 305, 311.
• 1, 2 After reviewing the evidence in this case, we find that the defendant was guilty of negligence as a matter of law because all reasonable men considering the evidence in this case would so agree. The evidence in this case establishes that the defendant, while travelling at a high rate of speed, attempted to pass three slow moving vehicles within 100 feet of an intersection in violation of section 11-706(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 11-706(a)(2)). Although the violation of a motor vehicle statute cannot be considered negligence per se but only prima facie evidence of negligence, the negligence of the defendant is actionable if it is shown that such statutory violation was a proximate cause of the plaintiff's injuries. Leonard v. Pacific Intermountain Express Co. (1976), 37 Ill. App.3d 995, 1000; Harrison v. Pullens (1967), 83 Ill. App.2d 245, 248; Hestand v. Clark (1952), 345 Ill. App. 480, 485; see Hale v. Cravens (1970), 129 Ill. App.2d 466, 473; Csalany v. Senesac (1968), 91 Ill. App.2d 241, 244.
The defendant admitted that a photograph introduced into evidence showed that the intersection in question was clearly visible from a distance of 400 feet. Any suggestion that the three vehicles which the defendant attempted to pass obstructed his view of the intersection does not withstand close scrutiny. The defendant's own testimony establishes that he pulled out to pass in the eastbound lane of Spring Creek Road when he was 200 to 300 feet behind the Wilcox vehicle. Given the speed with which the defendant was travelling and the fact that he skidded 90 feet along Spring Creek Road after applying his brakes and before entering the intersection, it is clear that he was in the eastbound lane for a considerable distance from the intersection, and from that vantage point he had an unobstructed view of the intersection.
• 3 It is well established that a motorist will be deemed to have observed that which he would necessarily have seen if he had looked, and testimony that he looked but did not see will not absolve him of the charge of negligence occasioned by his failure to look. In other words, one cannot look with an unseeing eye and not see that which he could have viewed by the proper exercise of his sight. Hicks v. Donoho (1979), 79 Ill. App.3d 541, 544; Pantlen ...