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Twait v. Olson





APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. FLOOD, Judge, presiding.


Rehearing denied April 6, 1982.

Plaintiff Tomm Twait received a severe permanent brain injury when a car driven by Bruce Olson in which Twait was passenger was struck from the rear by a car driven by defendant Forrest Farley while both were traveling north on a preferential highway known as the Leland Spur Road. Plaintiff brought this personal injury action against both Olson and Farley, and the jury returned a verdict in favor of plaintiff against defendant Farley for $550,000 and in favor of defendant Olson against plaintiff. Farley appeals from the judgment entered upon the verdict against him, asserting (1) that Farley should have been granted a directed verdict; (2) that the verdict was contrary to the manifest weight of the evidence; and (3) that eight evidentiary errors occurred during trial which either alone, or cumulatively, deprived Farley of a fair trial.

In order to consider the questions relating to the correctness of the verdict, it is necessary to set forth the factual circumstances of the accident. At about 12:15 a.m. on July 3, 1977, defendant Olson was driving his 1969 Camaro in an easterly direction along Stein Road approaching the intersection with Leland Spur Road. Both roads consist of only two lanes. Tomm Twait was a passenger in the front seat of the Olson vehicle. According to Olson, when he reached the intersection, he stopped at the stop sign, and saw a car approaching about one-quarter mile away to his right. He shifted into first gear, and as he started to pull out and make a left turn onto Leland Spur Road, he estimated the on-coming car to be about one-eighth mile to the south. Olson's vehicle was struck from the rear by the Farley automobile extensively damaging both vehicles. Farley said that when he saw Olson's car in front of him, he slammed on his brakes. Resulting skid marks measured 129 feet to the apparent point of impact at the north edge of the intersection and an additional 144 feet north of that point where both vehicles came to rest. The total of the Farley skid marks was therefore 273 feet long. Farley testified at trial that he was traveling no more than 55 miles per hour, that he saw the Olson vehicle make a left turn from the west into his lane of travel, that at that time the Olson vehicle was about 100 feet in front of him, and that he applied his brakes.

The debris from the collision was in the northbound lane 33 feet north of the center of the intersection. The Olson car was still in first gear when it came to rest. James Walz, an eyewitness in a car traveling from the north on the Leland Spur Road, saw the Farley car approaching as Olson pulled onto the highway. He said the Farley car was "real close" when Olson pulled out and that Olson had not completed a 90-degree turn when he was struck in the right rear corner of his car.

Farley was driving an 8-cylinder 1973 Camaro and was accompanied by Cindy Catron, who was asleep. Twait's severe brain injuries resulted in lowered intelligence, impaired space perception, altered personality, impaired speech and coordination, and an inability to be employed or to care for himself. Twait was 17 years old at the time of the accident and had been a popular and successful high school athlete, and a good student.

There is no question of contributory negligence on the part of the plaintiff. Also, this trial took place during June of 1980 prior to the Illinois Supreme Court decision in Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886, which promulgated the doctrine of comparative negligence in all negligence cases in which trial commences on or after June 8, 1981.

Plaintiff's theory of liability was that both defendants were negligent in that defendant Farley was traveling at an outrageously excessive speed and that defendant Olson misjudged Farley's speed when he pulled out onto the Leland Blacktop in front of Farley's oncoming car. Olson's defense was that it was Farley's negligence that caused the accident and that Olson acted reasonably at the time he turned onto the Leland Blacktop. Farley, on the other hand, defended on the theory that he was traveling at a reasonable rate of speed along a preferential roadway, that Olson suddenly pulled out in front of his vehicle when he was only about 100 feet south of the intersection, and that the collision occurred when Olson's vehicle had not yet completed its turn. The jury accepted Olson's version of the accident, thereby rejecting the testimony of Farley and his witnesses.

• 1 Upon appeal Farley contends, first, that the trial court should have granted his motion for directed verdict because he (Farley) could not have been guilty of negligence under the circumstances where he was the driver of an automobile on a preferential highway with the right to expect any automobile approaching on the secondary road controlled by a stop sign to obey the stop sign and yield the right-of-way, as required by law. Farley relies upon Hale v. Craven (1970), 129 Ill. App.2d 466, 263 N.E.2d 593, in support of his position. However, as Hale made plain, the driver on a preferential highway does not have an absolute right-of-way regardless of distances, speed, or other circumstances. (Accord, Conner v. McGrew (1961), 32 Ill. App.2d 214, 177 N.E.2d 417.) In Pennington v. McLean (1959), 16 Ill.2d 577, 583, 158 N.E.2d 624, 627, our supreme court said:

"[A] person approaching a preferred highway is not required to stop * * * long enough to permit any car that he observes on the highway to pass, regardless of its distance from the intersection. [Citation.] The statute requires only that the motorist confronted by a stop sign may, exercising reasonable care, proceed across the intersection after he has stopped and yielded the right of way to such vehicles on the through highway as constitute an `immediate hazard.' [Citations.]

The Illinois decisions, however, do not provide a precise formula for determining whether a particular vehicle has conformed to set standards; that question must be determined by the jury [citations], and involves considerations as to relative speeds and distances of the vehicles from the intersection."

As this court noted in Fincham v. Cooney (1976), 42 Ill. App.3d 719, 356 N.E.2d 445, Pennington v. McLean and Conner v. McGrew and other cases before 1967 were decided at a time when the test for directing a verdict was whether there was "any evidence" of negligence. That test was rejected in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, where the standard was held to be whether all the evidence viewed in the light most favorable to the nonmoving party so overwhelmingly favors the moving party that no contrary verdict could ever stand. In Fincham v. Cooney we went on to hold that the Pedrick decision did not change the standard of care required of a driver on a preferential highway and that the rule set forth in Pennington v. McLean and Conner v. McGrew is still valid.

The record in this case demonstrates substantial evidence of excessive speed on the part of Farley, indicating that he may have failed to exercise reasonable care in approaching and proceeding through the intersection. Farley was familiar with the terrain, having traveled the Leland Blacktop many times and having farmed a field at that intersection. There was a dip some 262 feet south of the intersection big and deep enough to conceal an automobile and adjoining the dip along the west shoulder of the road was a ten foot high embankment. Farley's 8-cylinder vehicle was a 4-barrel carburetor, 327-cubic inch, high-performance automobile. Two residents who lived near the intersection testified that they were awakened that night by the loud roar of an engine which continued for about 10 seconds and which was followed by the squealing of tires, a crash, and then the tinkling of hubcaps on the roadway. Farley admitted that he never saw the headlights of Olson's car but rather sighted only his taillights just before the collision. The length of the skidmarks, particularly after the impact, and the amount of debris and damage to the vehicles are additional factors indicating the tremendous speed of Farley's vehicle.

• 2 There was contradictory evidence, too, including Farley's testimony that he was traveling 55 miles per hour, and after reviewing all of the evidence, we find that there is evidence consistent with both plaintiff's theory and with Farley's theory, and, therefore, the case was an appropriate one for the jury to decide. (Fincham v. Cooney (1976), 42 Ill. App.3d 719, 721-22, 356 N.E.2d 319, 321.) Farley was not entitled to a directed verdict.

Farley also argues that the verdict was contrary to the manifest weight of the evidence. From our previous discussion of the evidence, we think it clear that there was substantial and, in fact, abundant evidence to ...

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