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Kosch v. Monroe

OPINION FILED MARCH 15, 1982.

MAGDALENE KOSCH ET AL., PLAINTIFFS-APPELLEES,

v.

DONALD MONROE, DEFENDANT-APPELLANT. — (EDITH A. MOFFET, DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. BRIAN L. CROWE, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 19, 1982.

The physical facts in the automobile collision here involved are:

Dempster Street runs east and west. It has two lanes for traffic in each direction. Rand Road runs in a slightly northwesterly and south-easterly direction at its intersection with Dempster. Rand also has two lanes of traffic in each direction. South of the intersection the southbound or western traffic lanes of Rand give access to the toll road. About 200 to 300 yards north of the Dempster intersection Rand Road makes a gradual curve to the northwest. The posted speed limit on Rand is 40 miles per hour.

Edith A. Moffet, a defendant, was driving north on Rand with intention to make a left turn on Dempster to drive west. Donald Monroe, also a defendant, was driving south on Rand Road in his right-hand lane. He was about to continue south on Rand, across Dempster, for toll road access. Traffic lights on Rand were green at the time. As these defendants approached the intersection; two large dump trucks were proceeding south on Rand in the center or inside lane. These trucks were waiting to make a left turn onto Dempster to proceed east. Magdalene Kosch (plaintiff) was a passenger seated in the right rear of the car driven by defendant Moffet.

The trial court directed a verdict in favor of plaintiff on contributory negligence. The jury returned a verdict of not guilty as to defendant Moffet; and verdicts in favor of plaintiff against Monroe for $250,000 for personal injuries; and in favor of Erich Kosch, plaintiff's husband, for $50,000 for loss of consortium. Defendant Monroe has appealed. We will first consider the issues regarding liability.

Plaintiff testified she did not pay attention to the route of the Moffet automobile. She did not remember specifically the approach to the intersection or the color of the traffic lights upon approach. She has never driven an automobile. She knew the Moffet car had stopped but could not say for how long. She did notice that the car was making a left turn immediately before the crash. She also noticed a truck on the far side of Rand. She did not see the Monroe car before the crash.

Defendant Moffet testified she approached Dempster in the left-hand or center lane. She put on her left-turn signal. She saw two large dump trucks stopped on Rand waiting to make the turn to their left to proceed east on Dempster. The first truck had a left-turn signal on. These trucks were in the inside southbound lane of Rand.

As Moffet approached the intersection, the trucks obstructed her view and she stopped. She did this to check the traffic and make sure she had a clear area. She remained stopped for one or two seconds. She saw no other traffic proceeding south on Rand. She could see about 200 feet of Rand Road to the north and she was satisfied she could then start and make the turn safely. She did not recall if she looked again for southbound cars on Rand. She did not see the Monroe car at any time until the collision. The cars came together as Moffet had crossed the inner southbound lane of Rand Road and was more than halfway into the outer southbound lane. The Monroe car struck her car at the rear door. She could not recall if she heard tires or brakes squeal before the crash. Her car was a total loss.

Defendant Monroe testified he had traveled this intersection a great many times. Both Rand and Dempster were busy streets. As he rounded the Rand curve proceeding south, he was in the right-hand or outside lane. He saw a green traffic light for traffic on Rand. He estimated his speed as 35 miles per hour. As he approached he saw the two large dump trucks apparently waiting to make left turns to go east on Dempster. The leading truck, partly into the intersection, was somewhat obstructed from his sight by the truck behind it. At that point these trucks obstructed his view so he could not see any other car which might turn left to go west on Dempster.

As Monroe proceeded he encountered a roughness in the road starting some 45 to 50 feet north of the intersection. He was familiar with this condition. He slowed down and reduced his speed perhaps 5 miles an hour. He did not look at the speedometer and was not sure about the speed reduction. Prior to his testimony he did not tell the police or any other person about this speed reduction. He did not swerve. He saw the Moffet car ahead of him in his traffic lane. That was the first time he had seen it. At that time he was just about at the rear of the second dump truck which would put him 40 to 45 feet away from the point of impact. On his deposition he testified he was 30 to 40 feet from the Moffet car when he first saw it. He jammed on the brakes when he saw the car and skidded into the collision. In an opening statement his attorney stated Monroe left approximately 54 feet of skid marks in his attempt to stop before the collision. Monroe did not blow his horn although he had time to do so. He struck the Moffet car about in its center. Damage to his own car was confined to the front with more damage on the right than on the left. His car swung the Moffet car around into the outer eastbound Dempster lane. His car stopped on the inner eastbound Dempster lane.

Plaintiff Kosch and her husband are very good friends of defendant Moffet and have been her neighbors for more than 20 years. No post-trial motion was filed by the plaintiffs against defendant Moffet. On the contrary, plaintiffs and Moffet entered into a written agreement which was disclosed to the trial court. This agreement recited that defendant Moffet was insured under a $100,000 policy. The claim of plaintiffs against Moffet was settled by payment from the insurer to plaintiffs of $25,000. The agreement also provided that if the insurer offered plaintiffs an additional $70,000 prior to jury selection in event of a new trial and plaintiffs refused this offer, plaintiffs would not seek to enforce any judgment they might obtain against defendant Moffet or her insurer in excess of $95,000. On this basis the trial judge entered an order which dismissed the action of plaintiffs against defendant Moffet without prejudice.

I

Defendant Monroe first urges Moffet was guilty of negligence as a matter of law. The verdict found the issues in favor of defendant Moffet. The notice of appeal filed by Monroe states no challenge against this verdict. Monroe filed no counterclaim or third-party action for contribution against Moffet. In fact, as above shown, the trial court has entered an order which dismissed the action of plaintiffs against Moffet without prejudice. Thus, the contentions in Monroe's brief directed against the alleged negligence of Moffet are virtually meaningless.

It appears to us that the only possible bearing this entire argument could have on the liability of Monroe to the plaintiffs would be the contention that he himself was free from negligence and the negligence of Moffet was the sole proximate cause of the injury to plaintiffs. However, "questions of proximate cause are ordinarily questions of fact for a jury to decide." French v. City of Springfield (1976), 65 Ill.2d 74, 79, 357 N.E.2d 438.

Monroe stresses the alleged violation by Moffet of the motor vehicle statute requiring a driver who intends to turn left shall yield the right-of-way to approaching vehicles which are "so close as to constitute an immediate hazard * * *." Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-902.

The authority cited in this regard by Monroe specifically holds that violation of this type of statute is not "negligence per se, inasmuch as it may be rebutted by proof that a person nonetheless acted reasonably under the circumstances [citation]." (Cowan v. Wheeler (1979), 76 Ill. App.3d 259, 265, 395 N.E.2d 32.) In Cowan, this court considered all of the evidence and concluded that under the circumstances there disclosed the trial court properly directed a verdict against defendant on the issue of his negligence. However, the facts in Cowan are far different from the case at bar. There, defendant admitted he made a left turn and then for the first time saw plaintiffs' car about 30 feet away. Defendant also testified "he could see at least two or three blocks to the south when he was stopped at the intersection before starting to turn left." 76 Ill. App.3d 259, 260.

Defendant Monroe also cites Wanner v. Keenan (1974), 22 Ill. App.3d 930, 317 N.E.2d 114. However, in Wanner defendant admitted that he had "4 or 5 shots of whiskey and 2 12-ounce bottles of beer at the tavern" and also that he made a left turn "without stopping to ascertain whether there was a safe interval in which to proceed * * *." 22 Ill. App.3d 930, 934.

In the case before us defendant Moffet testified clearly she could see some 200 feet ahead. However, the two dump trucks waiting to make the left turn into Dempster obstructed her view particularly because of the slight slant in Rand. Accordingly, Moffet stopped as she approached the intersection even though she did not then see any vehicle approaching from the north.

• 1 We are obliged to conclude that the conduct of Moffet was not, as a matter of law, necessarily the sole proximate cause of the injuries here. This will appear more strongly after the following resume of the testimony of Monroe. Thus, any contention which Monroe is making against the verdict in favor of Moffet must necessarily be rejected.

II

Defendant Monroe urges he was not negligent so that the trial court should have granted his motion for judgment n.o.v. and alternatively the judgments against him are contrary to the manifest weight of the evidence. In our opinion, no amount of argument and citation of cases can avoid the conclusion that the testimony of defendant Monroe was contradictory in a number of aspects.

Monroe testified this intersection was a place where a driver was required to be alert. He saw his traffic light was green when he was 200 to 300 yards from the intersection. He testified regarding his own speed that he was proceeding past the standing dump trucks at about 35 miles per hour. That was his highest speed before the collision. However, as he approached the end of the second truck, he slowed down and reduced his speed "perhaps" 5 miles an hour due to roughness in the road. He conceded that he never looked at the speedometer and therefore was not sure about his speed. In addition, he admitted he did not tell the police or any other person about this speed reduction.

His view of the road was obstructed by the two dump trucks. He testified he saw the turn signal on one of the trucks but not on both. In his deposition he stated both trucks had turn signals on for left turns. At one point he realized his view of the road was obstructed so that he ...


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