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Newlin v. Foresman









APPEAL from the Circuit Court of Bureau County; the Hon. C. HOWARD WAMPLER, Judge, presiding.


This case arose out of a collision between two cars near Princeton, Illinois. The trial court directed verdicts for two of the plaintiff-appellees on the issue of contributory negligence and against the defendant-appellant on the issue of his negligence. The jury awarded two plaintiffs $37,250 and $32,100, and awarded an additional $52,000 to the estate of Hopper, a plaintiff-defendant. The defendant asked for a new trial in his post-trial motion, alleging several errors in the original trial. The trial court denied this motion and the defendant now appeals.

On October 1, 1977, two cars collided in a head-on collision on Railroad Avenue, east of Princeton, Illinois. Railroad Avenue is a country road, approximately 20 feet wide with no painted center line. The two cars were occupied by five teenage boys. One car, driven by Larry Hopper, was eastbound on Railroad Avenue. David Ross and Brad Davis, Hopper's passengers, were sitting in the front seat. The second car, driven by Foresman, was westbound. The collision occurred just over the crest of the westernmost of two close, consecutive hills.

Hopper and Davis died in the collision. Randall Newlin, the only passenger in Foresman's auto, suffered injuries in his back and left arm and shoulder. Ross, the surviving passenger from Hopper's auto, suffered a broken left arm, lacerations on his right hand and wrist and a possible concussion. Apparently, Foresman was uninjured.

Newlin, Ross and the Davis administrator sued Foresman and Hopper's administrator. Hopper's administrator also sued Foresman on behalf of Hopper's estate. The Davis estate settled its claims against both defendants. The trial court consolidated the remaining actions and tried them together. We will detail the accident, injuries and events at trial as they become relevant to particular issues.

The defendant first challenges the directed verdicts for the plaintiff-passengers on the issue of their contributory negligence. Newlin testified that Foresman was driving normally until a few seconds before the collision. At that time, Foresman suddenly accelerated to 70 or 75 miles per hour and moved out of his lane. The sudden acceleration began at the top of the first hill. As Foresman approached the top of the second hill, Newlin testified, Foresman was still traveling about 70 miles per hour. Newlin also stated, and the defendant admitted, he wanted Foresman to move back into the proper lane, fastened his seat belt and locked his door. Foresman collided with Hopper seconds later. Foresman testified that he was traveling west on Railroad Avenue no faster than 55 miles per hour. Foresman claims that, after Newlin warned him to move to the right, he slowed down and moved back into his lane.

It is well settled that a trial court should enter a directed verdict only when the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) Foresman argues that Newlin's failure to protest the speed of the vehicle creates an issue of fact for the jury as to whether he was contributorily negligent. Foresman relies on several cases from Illinois which indicate that a passenger has a duty to warn a driver of excessive speed. E.g., Schultz v. Stephan (1956), 8 Ill. App.2d 563, 132 N.E.2d 30 (abstract); Wilson v. LaCost (1974), 20 Ill. App.3d 624, 314 N.E.2d 27; Hayes v. Alsburg (1978), 72 Ill.2d 560, 382 N.E.2d 239.

In Hayes, the supreme court ruled the issue of contributory negligence of a plaintiff-passenger who was asleep at the time of the collision was properly before the jury. The plaintiff and driver had traveled all day, were still on the road at 1:30 a.m., traffic was heavy and there was evidence of excessive speed. The court stated, "[a] jury might have inferred that the speeding had been continuous and concluded that an ordinarily prudent passenger would not have gone to sleep under all these circumstances." 72 Ill.2d 560, 567.

Hayes does not, however, mandate a reversal of the judgment here. In Smith v. Bishop (1965), 32 Ill.2d 380, 205 N.E.2d 461, the driver of an auto attempting to pass a truck on the left collided with the truck when it suddenly made a left turn. The plaintiff-passenger testified that, if the defendant's left turn signal was operating before her driver attempted to pass, she did not see it. The supreme court upheld a directed verdict for her on the issue of contributory negligence. "[U]nless the passenger sees an obvious danger which the driver might not see there would be no duty to warn him." 32 Ill.2d 380, 384.

More recently, in Bauer v. Johnson (1980), 79 Ill.2d 324, 403 N.E.2d 237, the supreme court ruled that a passenger-owner was free from contributory negligence as a matter of law when she did not notice anything unusual in the way her newly licensed son drove the car, next saw the defendant's vehicle approaching from the side and then shouted "look out" when the car was 50 feet from eventual collision. The court quoted Kalechman v. Drew Auto Rental, Inc. (1973), 33 N.Y.2d 397, 402-03, 308 N.E.2d 886, 889, with approval:

"[W]ith the advent of the modern automobile there is no longer any basis for assuming that the passenger, no matter what his relationship to the driver may be, has the capacity to assert control over or direct the operation of a moving automobile. The design of the vehicle, the high speeds at which it travels, the split second timing which is often necessary to avoid collision have all combined to erode the assumption that anyone other than the driver can effectively control the operation of the vehicle in traffic.

In fact, under modern driving conditions anyone who `allows another to drive would only increase the risk of accidents by interfering with the driver's control of the car or by diverting his attention' [citation]."

Although both cases concern the issue of imputing the negligence of a driver to the owner-passenger of the vehicle, the circumstances are similar to the case at bar and the reasoning is persuasive. Furthermore, this court recently noted that occupants of a vehicle have no practical control over its operation. Andes v. Lauer (1980), 80 Ill. App.3d 411, 399 N.E.2d 990, citing with approval Mirza and Appleman, Illinois Tort Law and Practice § 4.7 (1974).

• 1 On the issue of contributory negligence, the evidence — in its aspect most favorable to Foresman — indicates that Newlin noticed nothing unusual in the manner of Foresman's driving until one-half mile before the collision. At that point, Foresman accelerated to approximately 70 to 75 miles per hour on the downgrade of the first hill. Newlin, in the 20 seconds between acceleration and impact, told the driver to get to the right side of the road, locked his door and buckled his seat belt. Newlin sufficiently warned Foresman that his driving now posed a threat to their safety. The fact that Newlin could not or did not detail everything that was dangerous about the defendant's driving in those seconds does not create a question of contributory negligence. Moreover, an explicit statement on the speed of the vehicle was unnecessary, because Foresman admitted he was slowing down as he moved back into his lane. Foresman took Newlin's statement and actions as a broad warning. Under these circumstances, Newlin cannot be held contributorily negligent. The trial court did not err in directing a verdict on this issue.

Similarly, the trial court did not err when it directed a verdict in favor of the other plaintiff, Ross, on the issue of his contributory negligence. Ross, the only surviving occupant of the eastbound Hopper auto, suffered retrograde amnesia as a result of the accident. He does not recall the accident itself or what happened seconds before impact. According to his unrebutted testimony, he noticed nothing unusual in the way Hopper drove the auto. As they came up the hill, he saw headlights shining in the air. He stated that Hopper was in the eastbound lane at that time, though conceded on cross-examination that Hopper might have been over the center line.

• 2 As Smith v. Bishop and Andes v. Lauer indicate, a passenger has no duty to warn the driver unless he sees a dangerous condition developing and appreciates that danger. Ross, as a matter of law, did not see and ignore an obvious impending danger. (Andes v. Lauer (1980), 80 Ill. App.3d 411, 415.) The trial court properly directed a verdict in favor of Ross as to his freedom from contributory negligence.

The defendant next challenges the directed verdict against him on the issue of his negligence. The directed verdict was proper, under the Pedrick rule, if the evidence, viewed in its aspect most favorable to Foresman, so overwhelmingly favors the plaintiffs that no contrary verdict would be permitted to stand. Foresman testified that he believed he was traveling at 55 miles per hour. He based his belief on the treacherous condition of the road. Under adverse examination, he stated that he was not looking at the speedometer, and conceded he could have been traveling 70 miles per hour. He also testified that he was in his lane at the time of the collision.

Besides Newlin's testimony, the plaintiffs produced two other witnesses: Deputy Muratori, who investigated the scene of the accident and David Rumley, an eyewitness. Rumley testified that he was behind Foresman for a mile and saw his car go up the second hill. He also stated that Foresman was driving approximately 70 miles per hour when he was traveling up the hill, and that Foresman was off the road on the south shoulder (thus, in the incorrect lane) at that point.

Deputy Muratori described the scene of the accident. The point of impact was 98 feet west of the top of the hill. The deputy determined that the vehicles were in the same position when he arrived as they were immediately after impact. Debris and gouge marks were in the eastbound (Hopper's) lane. There was no debris in Foresman's lane. Foresman's car left a 50-foot skid mark entirely in Hopper's lane. When the skid mark started, Foresman's car was more than halfway into the oncoming lane. Although ...

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