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Balfour v. Citgo Petroleum Corp.

OPINION FILED JUNE 30, 1983.

DIANA BALFOUR, PLAINTIFF-APPELLEE,

v.

CITGO PETROLEUM CORP. ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Robert G. Mackey, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiff was severely injured on December 6, 1976, in a collision between her automobile and a tank trailer when one or both of the vehicles crossed the center line on a snowy, icy road. The jury found for plaintiff in the amount of $120,000; however, since it found both parties 50% negligent, the award was reduced to $60,000. Only the defendants appeal.

On appeal defendants contend:

(1) the trial court erred in permitting the testimony of Ronald Janis because he did not witness the accident; he did not identify the truck he saw as the one involved in the accident; the truck he saw crossed the center line some undetermined distance east of the accident; the truck driver had been removed from the scene before he arrived; he testified as to tire tracks and a mound of snow without their being tied to the accident;

(2) since the issue was which vehicle crossed the center line, the trial court erroneously submitted the question of comparative negligence to the jury.

We find that the defendants' contentions as to Janis are unsupported by the record and that comparative negligence was properly submitted as an issue.

The plaintiff Diana Balfour testified that before the accident she had been driving her Toyota Celica eastbound on Army Trail Road. There was heavy snow and because of the snow no center line was visible near the accident scene; however she could see the shoulder of the road. Plaintiff followed the other vehicular tracks, driving about 30 to 35 miles per hour. There was no eastbound traffic ahead.

Balfour first saw the tank truck when it was about a block away. When she first observed the truck it appeared that it was picking up speed and was moving between 40 and 45 miles per hour. At that time the truck was in its own (westbound) lane but it was crowding the eastbound land. As the truck approached, according to plaintiff, it suddenly crossed from the westbound lane over into her lane of traffic driving "very, very fast." According to plaintiff the collision occurred before she could take any evasive action. She was still following the other car tracks at the time of the accident. The front end of the truck came into contact with the side of her car.

Arnold Wille, the driver of the gasoline tanker truck, testified that the road, approaching the accident scene, was only partially covered with less than an inch of snow. The center line was visible as was the edge of the pavement. According to Wille, when he first saw plaintiff's car it was completely in his lane about 100 to 150 feet away and traveling at about 35 miles per hour. It looked as if she was passing another car. He swung off onto the shoulder and applied his brakes. He admitted that driving a tractor-trailer combination off the pavement under those conditions carried with it the danger of loss of control and jackknifing, resulting in the vehicle "fishtailing" in an uncontrolled manner. According to Wille the collision occurred when the tractor-trailer combination was partly on the westbound shoulder and partially on the westbound lane of the roadway. However, it ended up in a field north of the eastbound lane of traffic. So did plaintiff's car.

There were also two drivers who had been following behind Wille's truck at the time of the accident. Ronald Janis testified that for about five miles before the accident, his blue pickup truck had been following behind the gas tanker trailer which was involved in the accident, traveling at about 35 miles per hour. He had been driving about three car lengths behind the truck using the truck as a guide because none of the lane lines were visible. As far as Janis remembered there was no vehicle between him and the truck.

Janis saw the truck veer sharply off the shoulder of the road in his lane and then whip back onto the road in the oncoming lane. Janis then slowed down. He saw the back of the truck go into the oncoming lane and then saw a big clump of snow pushed by truck tires into the eastbound lane; the truck by then had proceeded on its course. After seeing the clump of snow, Janis looked around and saw a black object off the road about one hundred feet west of the clump of snow. The black object turned out to be plaintiff's car. Janis pulled off the road and walked to plaintiff who was about 100 feet southeast from the automobile. He attended to her and started walking west to summon help. As he approached the truck which was also off the road on the south side, someone whom he could not identify yelled that there was gasoline leaking and to get away. Janis did not see the truck driver.

Janis agreed that he did not see the actual collision. As he was driving he could not see any vehicle approaching the tractor trailer.

Robert Barth testified that he had been driving about 175 to 200 feet behind the accident truck; a blue car was in between. All three vehicles were traveling about 35 miles per hour. According to him the weather was cloudy at that time with only light snow. The center line was visible at times. He did not remember if it was visible at the scene of the accident. The edge of the road was visible.

Barth first saw plaintiff's car when he was about 200 feet from the tanker. At this time he saw the truck apparently go out of control pulling off the road onto the westbound shoulder and kicking up a cloud of snow. The trailer straddled the pavement and the shoulder. The car was at this point traveling somewhat ...


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