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Duewel v. Lahman

OPINION FILED DECEMBER 29, 1981.

ROBERT DUEWEL ET AL., PLAINTIFFS,

v.

LLOIL LAHMAN ET AL., DEFENDANTS-APPELLANTS. — (KATHRYN DUEWEL, PLAINTIFF-APPELLEE.) — (CAROL LAHMAN, PLAINTIFF-APPELLEE,

v.

THE COUNTY OF KANE, DEFENDANT-APPELLANT. — (LLOIL LAHMAN, PLAINTIFF-APPELLANT.))



APPEAL from the Circuit Court of Kane County; the Hon. PAUL W. SCHNAKE, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Robert and Kathryn Duewel were driving north on Randall Road in Kane County about 7 p.m. on August 30, 1978. Lloil and Carol Lahman were driving east on McDonald Road, also in Kane County, at about the same time. Both couples were in their fifties; the weather was sunny and dry. The vehicles driven by the two men collided in the northbound lane of Randall Road where it intersects McDonald, the Duewels' Mercury striking the right rear side of the Lahmans' camper/van. The stop sign normally located on McDonald at the southwest corner of the intersection was missing, as was the "Stop Ahead" sign which would have been located on McDonald a distance to the west of the stop sign. The personal injury action brought by the Duewels against Lloil Lahman and the County of Kane, and the cross-claim brought by the Lahmans against the County of Kane were consolidated for trial. Robert Duewel was later allowed to withdraw as a plaintiff. Several amended complaints were filed, and motions to strike and dismiss filed by the county were denied.

A jury awarded judgment for plaintiff Kathryn Duewel against defendants Lahman and the County of Kane in the amount of "$27,500 each." The jury awarded $10,000 to Carol Lahman against the County of Kane, and $75,000 to Lloil Lahman against the County of Kane. It also answered in the affirmative a special interrogatory on the issue of Lloil Lahman's contributory negligence. Following post-trial motions, the trial court entered a $55,000 judgment for Kathryn Duewel jointly against defendants Lahman and the County of Kane and a $10,000 judgment for Carol Lahman against the County of Kane. Also, because a special interrogatory supersedes a general verdict, the trial court vacated the $75,000 judgment for Lloil Lahman against the county. The County of Kane appeals the trial court's denial of its motions for directed verdicts and judgment n.o.v. and the denial of its motion to strike and dismiss the complaint. Lahman appeals from the jury's verdicts finding him guilty of negligence and contributory negligence, and from the denial of his post-trial motion.

At the outset we note the comparative negligence doctrine adopted in Illinois in Alvis v. Ribar (1981), 85 Ill.2d 1 was not applicable to the instant case since the verdicts were returned prior to June 8, 1981, which was the effective date of the comparative negligence doctrine.

We now address ourselves to the issues raised in the Lahman appeal. He contends the jury's verdict against him as a defendant that he was negligent and its finding that he was contributorily negligent as cross-plaintiff were against the manifest weight of the evidence. The evidence was that Lahman was familiar with Randall Road and had even driven on it earlier in the evening. He was not familiar with McDonald Road, however, but testified he felt he was on a preferred highway. The last stop sign for eastbound traffic on McDonald was about 3 1/2 miles west of Randall Road at Corron Road. Lahman testified he did not recall the stop sign at Corron Road, nor the two stop signs before that one, but his wife testified they stopped for each stop sign. Traffic on several side streets intersecting with McDonald was stop-sign controlled. McDonald was a gravel road at the point Lahman first began traveling eastward on it, but it was paved for the majority of the distance he drove on it. McDonald Road was approximately 20 feet wide; Randall was 24 feet wide, also paved. Lahman testified he saw Randall Road when he was about 100 feet away from the intersection, but that he did not specifically remember physically looking to the left or right or slowing down as he entered the intersection. He did not see the back of the opposing stop sign on McDonald across Randall Road. His wife testified that after the accident he had stated to a police officer that he was traveling about 55 miles per hour; his own earlier testimony was that he was going 30 to 35 miles per hour before the impact and at the time of the impact. Speed limits on both Randall and McDonald are 55 miles per hour. Neither he nor his wife observed any cars precede the Duewel car through the intersection, although there was testimony that two cars were traveling ahead of the Duewel car on Randall. He was driving a van, which testimony indicated would have placed his line of vision at about 5.54 feet up from the pavement whereas the line of vision in a passenger car is about 3.9 feet above pavement level. There was no evidence of sight obstructions which would have prevented him from seeing oncoming traffic on Randall. No skid marks were found at the accident scene; Mrs. Lahman testified they were about half way across Randall Road when they saw the Duewel car just before the impact.

When encountering an open intersection, a statutory duty is imposed on the driver of the vehicle to the left to yield the right-of-way to the driver on the right. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-901(a).) This same duty is likewise imposed where the stop sign is missing, thus rendering the intersection an open one. (Carr v. Shirland Township (1978), 66 Ill. App.3d 1033, 1036.) Even if Lahman felt that he was on a preferred highway, there was clear testimony he was unfamiliar with that road; he did not know if it was such a highway. Although Lahman did not remember stopping, there was evidence McDonald Road traffic is stopped at three intersections to the west of its intersection with Randall. Although the testimony is not clear on this point, it appears that a number of subdivision streets which intersect McDonald and which were stop-sign controlled were "T" intersections rather than cross intersections. Under the circumstances and pursuant to statute, Lahman should have been prepared to yield to traffic from the right if necessary. The evidence that he did not see the Duewel car until just before it hit his van and the fact that no skid marks were found lead to the conclusion that he did not look to the right as he approached the intersection or that under the circumstances he was traveling too fast when he entered the intersection.

Smith v. Godin (1978), 61 Ill. App.3d 480, cited by Lahman, is distinguishable. Although the defendant there was found not to be negligent as a matter of law, the evidence was that she had been through the intersection two or three times in the preceding six-month period and she had never observed a stop sign. Also, contrary to the instant facts, both parties in that case testified they kept a proper lookout for other traffic, and there were no inconsistencies in their testimony that they were traveling below the posted speed limit. Lesperance v. Wolff (1979), 79 Ill. App.3d 136, is also distinguishable. The court there found the jury's verdict that the plaintiff was contributorily negligent was manifestly unreasonable in view of the fact he would have had only one-to-two seconds to take the evasive action necessary to have avoided the accident. In the instant case, Lahman failed to exercise the necessary reasonable care before there was any need for evasive action. The jury expected Lesperance to exercise an impossible standard of care. Lahman, on the other hand, was only expected to exercise the standard of care of a reasonable person on an unfamiliar road.

• 1 We conclude the jury's findings of negligence and contributory negligence were not against the manifest weight of the evidence.

Lahman next contends the jury's verdict and answer to the special interrogatory were against the manifest weight of the evidence because his conduct was not the proximate cause of the injuries; rather, it was the failure of the county to replace the stop sign which was the proximate cause. (See Buckley v. City of Chicago (1954), 3 Ill. App.2d 39, and Johnston v. City of East Moline (1950), 405 Ill. 460, wherein the cities' negligence in failing to maintain respectively a stop sign and traffic signals was held to be the proximate cause of the plaintiffs' injuries.) In its appeal, the county also raises the proximate cause issue, contending its action could not have been the proximate cause because it had no duty to the plaintiffs since there was no actual or constructive notice of the defect. See Wilsey v. Schlawin (1976), 35 Ill. App.3d 892, wherein the court held the evidence failed to establish the public entity had the statutorily required notice, consequently no duty could have been breached, and no liability obtained, therefore the entity's actions were not the proximate cause.

In the alternative, the county argues that even if it did have a duty to the plaintiffs, its actions were not the proximate cause, but merely created a condition making an injury possible. (See Carr v. Shirland Township (1978), 66 Ill. App.3d 1033, wherein the court held the facts stated in the complaint were insufficient to state a cause of action against the township since its allegedly negligent act merely furnished a condition making the plaintiff's alleged injuries possible and were not the proximate cause thereof.) The following discussion is a joint consideration of the issue of proximate cause in light of both Lahman's and the county's appeal.

In order for a negligent act to be the proximate cause of an injury,

"[t]he injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act." Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380.

• 2 The negligence of a defendant will not constitute a proximate cause of a plaintiff's injuries if some intervening act supersedes the defendant's negligence, but if the defendant could reasonably foresee the intervening act, that act will not relieve the defendant of liability. (Greene v. City of Chicago (1978), 73 Ill.2d 100, 111-12.) Stated another way, the intervention independent concurrent or intervening forces will not break the casual connection if the intervention of such forces was itself probable or foreseeable. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 381.) There may be more than one proximate cause of an injury. (Ray v. Cock Robin, Inc. (1974), 57 Ill.2d 19, 23.) "Where injury or damage is caused by the concurrent negligence of two persons and the accident would not have occurred without the negligence of both, the negligence of each is the proximate cause of the injury or damage." Naslund v. Watts (1967), 80 Ill. App.2d 464, 470.

Our review of the record here causes us to conclude that the negligence of both Lahman and the County of Kane caused the accident, therefore, the negligence of each is the proximate cause. In so concluding, we necessarily reject the county's argument that it had no duty because it lacked either actual or constructive notice that the sign was missing in sufficient time to replace it. Its contention in this regard was based on section 3-102 of the Local Governmental and ...


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