Appeal from the Circuit Court of Cook County; the Hon. Walter
J. Kowalski, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 13, 1983.
This action was brought as a result of injuries sustained by plaintiff in a three-car rear-end collision. The trial court entered judgment upon a directed verdict in favor of the plaintiff on the issue of negligence, with damages assessed and awarded by the jury. Defendant appeals, raising the following issues: (1) whether the trial court erred in directing a verdict in favor of plaintiff and against defendant on the issue of negligence; and (2) whether the trial court erred in refusing the tendered "burden of proof" jury instruction and submitting to the jury a court-modified version of that instruction. The pertinent facts are as follows.
On September 29, 1974, the three automobiles involved in the collision described herein were northbound in the same traffic lane. The first car was occupied by a driver and one passenger, neither of whom were named as parties to this suit. Plaintiff Virginia Korpalski was seated in the front passenger seat of the second car which was driven by her husband Walter Korpalski (hereinafter Korpalski). Korpalski also was not named as a party to this suit. Defendant Ralph Lyman was the driver and only occupant of the third car.
At trial plaintiff testified that, just prior to the collision, the car she was riding in was traveling at approximately 15 miles per hour and was about 2 1/2 car lengths behind the first car. She stated that she saw the first car slowing, saw its turn signal and brake lights go on, and then felt the impact of being struck from the rear. Korpalski concurred with plaintiff's testimony. He stated that when he saw the turn signal and brake lights of the car in front of him he applied his brakes and was struck from the rear, which impact pushed him into the car in front of him. He testified that he had tested his brake lights earlier that day and that they were working properly.
Defendant testified that he had been traveling at about 30 miles per hour but, just prior to the collision, had slowed to about 15 miles per hour, that he did not see the brake lights on the car in front of him, and that when he observed the rear end of the car in front of him go up six to eight inches he applied his brakes and then struck the car ahead of him. He stated that he did not see and was not aware of any other collision and did no know whether he had pushed the Korpalski car into another car.
Dorothy Peterson, the driver of the first car, testified that just before the collision she had stopped her car and had activated her right turn signal, preparing to pull into a parking space. She stated that, in her rear view mirror, she saw the Kropalski car approaching and observed plaintiff and defendant looking at each other. She then felt the impact as the Korpalski car struck hers and felt a second impact several seconds later. Julia Peterson, a passenger in the first car, also testified that the car she was riding in had come to a complete stop before she felt the first impact, and that she felt a second impact a few seconds after the first.
The police officer who arrived at the scene after the accident stated that each of the three drivers told him that the third car hit the second car and pushed it into the first car.
Dr. Allen Hirschtick, a physician specializing in orthopedic surgery, testified that the type of injury plaintiff sustained results from the vehicle in which the subject is riding being struck from the rear. He and other expert witnesses testified regarding the nature and extent of plaintiff's injuries.
On rebuttal, plaintiff presented the testimony of an investigator who had taken the statements of defendant and the Petersons six weeks after the accident. Defendant told the investigator that he hadn't seen the tail lights on the car in front of him and that when he hit the car in front of him he pushed it into the first car. In her statement, the driver of the first car stated that as she was slowing down she heard the impact of the two cars behind her, which impact pushed the second car into her car. The passenger in the third car also stated that she heard the sound of the impact to the Kropalski car and then heard and felt the impact to the car she was in.
At the close of all the evidence, the court granted plaintiff's motion for a directed verdict on the issue of negligence only and submitted to the jury the questions of proximate cause and damages. On September 28, 1981, the jury awarded damages in the amount of $100,000 and judgment was entered. Defendant appeals.
Defendant argues first that the court erred in finding him negligent as a matter of law and directing a verdict in favor of plaintiff on that issue. A verdict should be directed in those cases in which all of the evidence, when 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, 229 N.E.2d 504.) Where a substantial factual dispute is disclosed by the evidence, however, the question of plaintiff's due care or defendant's negligence should be given to the jury for determination. (Wolfe v. Whipple (1969), 112 Ill. App.2d 255, 251 N.E.2d 77.) A rear-end collision does not automatically create an inference as a matter of law that the driver of the rear car was negligent. The trier of fact must determine whether the rear driver was acting reasonably under the circumstances or that the accident was unavoidable. Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App.3d 158, 392 N.E.2d 183.
• 1, 2 The driver of a car has a duty to see other cars traveling ahead in the traffic lane and to be sufficiently in control of his or her own vehicle so as to be able to stop it without running into other traffic lawfully on the roadway. (Houchins v. Cocci (1963), 43 Ill. App.2d 433, 193 N.E.2d 597.) In the instant case, defendant admits that, considering the speed at which he was traveling and his distance from the Kropalski car, he could not stop in time to avoid a collision. Unlike the situation in Burgdorff, there was no evidence presented tending to show that defendant was in a helpless or an unavoidable situation. Further, Korpalski testified that his brake lights were on, but defendant stated only that he did not see them. At no time did defendant testify that the brake lights were not on. Thus, regarding the presence or absence of brake lights, there was no question of fact before the trial court. (See Wissmann v. Jedrzejak (1979), 71 Ill. ...