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Nunley v. Mares

OPINION FILED MAY 4, 1983.

WANDA NUNLEY, PLAINTIFF-APPELLANT,

v.

FRANK E. MARES, D/B/A MARES SERVICE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of La Salle County; the Hon. Alexander T. Bower, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 7, 1983.

Plaintiff Wanda Nunley appeals from the judgment of the circuit court entered against her after a jury verdict in favor of defendants Frank E. Mares, d/b/a Mares Service, and Ronald Veen. Plaintiff's action against the defendants was based upon alleged negligence and wilful and wanton misconduct by them in connection with a towing operation. The jury returned a general verdict for the defendants, and answered, in the negative, the following special interrogatory: "Was the negligence of the defendants a proximate cause of the injury to the plaintiff?" On appeal, plaintiff raises the following issues: (1) whether the verdict and answer to the special interrogatory are contrary to the manifest weight of the evidence; (2) whether the court erred in refusing two of plaintiff's instructions; (3) whether the court erred in excluding evidence that the defendant had forfeited his bond on a traffic citation issued as a result of the accident; (4) whether defense counsel engaged in improper and prejudicial closing argument; (5) whether the court improperly restricted the cross-examination of a defense expert witness; (6) whether reversal is required because the defense failed to comply with Rule 215(c); and (7) whether the court abused its discretion in ruling that the jury could begin deliberations at a late hour.

The record discloses that on January 18, 1977, around 1:30 p.m., plaintiff was driving northbound on Dimmick Road, a two-lane blacktop highway in La Salle County. It was a sunny day and plaintiff was approximately one mile north of Route 351, on Dimmick Road, driving her 1963 Chevrolet. At the same time, some distance ahead of plaintiff Nunley on the road, was the defendant Ronald Veen, who was engaged in a towing operation under the employ of Mares Service. A disabled semi-truck was located on the right shoulder (east side) of Dimmick Road. On the left side (west side) of the road was the Mares' tow truck with Veen in charge. Evidence indicated that the cab of the semi had been pulled up to the east edge of the highway, and at the time of the collision, was several feet onto the roadway. The Mares wrecker was positioned perpendicular to the highway, with the rear end of the wrecker onto and over the west edge of the pavement, facing the disabled semi on the other side of the road. The wrecker, according to testimony, extended out about 3 1/2 feet on the paved part of the west half of the highway.

Veen had run two steel cables from the back of the wrecker to the front of the disabled semi, for the purpose of pulling the semi onto the highway. Veen testified that he had all his lights on the wrecker in operation, including revolving mars lights and all body lights. Before he hooked the cables to the semi, Veen had stopped all approaching traffic by putting his hands up. At that time, the cables were lying on the pavement surface. Two or three southbound vehicles were stopped north of the towing operation, and one northbound vehicle was stopped south of the operation. The northbound vehicle, hereinafter referred to as the Jupe auto, was driven by a woman and had stopped between 75 and 140 feet south of the cables. There was some variance in the trial evidence as to that distance. Veen testified that the northbound vehicle had not only stopped on the highway, but that the driver had activated its four-way warning flashers.

According to Veen, plaintiff Nunley pulled up behind the Jupe auto, already stopped in the northbound lane, and stopped her auto as well. Veen, at this time, was standing at the rear of the wrecker. Veen's testimony was that Nunley stopped about a car length behind the Jupe auto, or about 150 feet from the cables in the road. When Veen saw that all traffic was stopped, he began to tighten the cables, with the winch mechanism on the wrecker. The cables were tightened, an operation which took about 30 seconds. Then, according to Veen, he heard a car accelerate, and, turning to the south, he observed Nunley's auto coming around the stopped Jupe vehicle in front of her. He estimated that the Nunley auto was at 15 to 20 mph and accelerating. He ran from beside the wrecker into the center of the road, waving his arms at Nunley and yelling "stop," in an attempt to prevent further progress by Nunley. His efforts were unavailing, and Nunley drove her auto into the taut steel cables stretched over the highway between the wrecker and the disabled semi. Veen stated that after the accident, Nunley admitted that she saw him as he ran to stop her, but she stated that she had not slowed down because he had "scared" her. The evidence also indicated that Veen had not posted any warning flags or fusees on the highway, nor had a flag been attached to the cable. Defendant Mares testified that the flags are not used on the cable, because they may get caught in the pulleys when the winch is in operation.

Plaintiff Nunley's version of the events surrounding the accident varied in considerable detail from that testified to by defendant Veen. Nunley stated that after passing a viaduct, she slowed to pass a car in the northbound lane, which she thought was stalled on the road. She saw no flashers on the auto. She stated that as she passed the vehicle, she noticed the wrecker on the left (or west) side of the highway and the semi on the east shoulder of the road. She stated that she saw no other cars stopped, nor did she notice anything on the highway. She slowed to observe but did not stop her auto. She testified that she saw no person on or off the highway and nothing to indicate to her not to proceed past the towing operation. Nunley did admit to seeing the yellow flashing lights of the wrecker prior to the accident, and admitted that she "stepped on it" just before striking the cable. Another witness, Loraine Jupe, was the driver of the northbound auto which had stopped ahead of Nunley in the northbound lane. Mrs. Jupe testified that the wrecker operator had flagged her down, and that she had stopped and put her flashers on. She could observe the cable in the highway. Mrs. Jupe noticed, as plaintiff's car came around hers, that the wrecker operator tried to flag down Nunley, standing in front of the cable. She also testified to overhearing Nunley admit that the accident was her fault, and that she had not noticed the cable, as she was watching the truck.

The defense evidence indicated that Veen had been instructed by his employer, Frank Mares, to put a flag on a cable crossing the road, in order to stop traffic. Veen had also been instructed generally on the placement of warning signals and on informing the police if the wrecker's operation would necessitate slowing or stopping the flow of traffic.

As a result of the accident, plaintiff Nunley was treated for neck and back injuries, as well as a lacerated lip. Her medical evidence indicated disc syndrome, caused by a herniated disc, which could be permanent and require future medical treatment as well. The medical diagnosis and the severity of any injury was disputed by the defendants.

The jury returned a verdict for the defendants, answering in the negative a special interrogatory which asked: "Was the defendant's negligence a proximate cause of the plaintiff's injuries?"

• 1 Plaintiff Nunley's first contention on appeal is that the verdict of the jury and its answer to the special interrogatory were contrary to the manifest weight of the evidence. We disagree, for when the disputed questions of fact are resolved in defendants' favor, as they must be on the verdict (Lynch v. Board of Education (1979), 72 Ill. App.3d 317, 322, 390 N.E.2d 526), the evidence in the record clearly supports a conclusion and finding that it was plaintiff's negligence, in disregarding the available warnings to stop, which was the proximate cause of her injuries. The flashers and other warning lights on the wrecker were all activated, and plaintiff admitted seeing them. Further, the wrecker was positioned in such a manner as to indicate an ongoing operation on the highway. Plaintiff Nunley observed the disabled semi off the road on the other side of the road from the wrecker. Vehicles in the southbound lane had stopped on the other side of the wrecker, and the Jupe auto was stopped, with flashers activated, in Nunley's northbound lane of traffic, some distance from the towing operation. All of the activity on the highway, including flashers on both wrecker and Jupe auto, indicated that caution was necessary. Further evidence indicates that Nunley initially stopped her auto behind the Jupe auto, but then unexpectedly swerved around it, accelerating the entire time and driving into the taut cable, after disregarding defendant Veen's frantic attempts, from the middle of the road, to stop her before hitting the cable. The record indicates that numerous warnings not to proceed were present and that plaintiff Nunley ignored them by proceeding in the manner she did. The acts of plaintiff Nunley in disregarding the available warnings to stop and proceeding without caution are unreasonable, and the jury could properly have concluded that it was plaintiff's actions therein, and not any act or omission of the defendants, which was the proximate cause of her injuries. The facts support fully the verdict and the answer to the special interrogatory. Our decision in Walsh v. Central Illinois Public Service Co. (1918), 212 Ill. App. 668 (abstract), an unpublished opinion, is inapposite, involving as it did a permanent guy wire placed over a well-worn track along a highway, without any advance warning of any kind as to its presence. The general verdict is supported by the evidence which indicates plaintiff's negligence as the cause of her injuries. Additionally, we find no ambiguity in the special interrogatory, as is suggested by plaintiff's counsel. The clear focus of the interrogatory was the question of proximate cause, not the questions of negligence and injury. The interrogatory assumed defendant's negligence and injury to plaintiff, and focused upon the causation issue. As determined, the evidence was sufficient for the jury to have found that it was not any negligence of the defendants, but negligence by the plaintiff, that was the proximate cause of the injuries. Plaintiff correctly notes that if the evidence indicates that plaintiff's negligence was reasonably foreseeable, it will not relieve the defendant of liability. (Bentley v. Saunemin Township (1980), 83 Ill.2d 10, 15, 413 N.E.2d 1242.) In the instant case, however, the conduct of the plaintiff in proceeding forward without caution, in the face of numerous warnings to be cautious, and after stopping initially in the face of such warnings, was not reasonably foreseeable. Bentley is not at all controlling, for there was no clear advance warning, as in this case, nor was the plaintiff guilty of disregarding clear warnings. We conclude, on the basis of the evidence viewed favorably to defendants, that the verdict and special interrogatory were not contrary to the manifest weight of the evidence. The record supports a jury conclusion that the injuries suffered by the plaintiff were proximately caused by her own negligence, and not by any negligence on the part of the defendants.

• 2 We next turn to the issues raised concerning two jury instructions tendered by plaintiff, but refused by the trial court. Plaintiff tendered its instruction No. 26, which stated:

"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

`No person shall operate any motor vehicle at the second division upon any highway outside an urban district at any time unless there is carried in such vehicle the following equipment, ...


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