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Osborne v. O'brien

OPINION FILED JUNE 14, 1985.

ALEXANDER JOSEPH OSBORNE, SR., PLAINTIFF-APPELLANT,

v.

JOSEPH E. O'BRIEN ET AL., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.

PRESIDING JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 24, 1985.

The plaintiff, Alexander Joseph Osborne, filed suit against the defendant, Joseph O'Brien, for injuries sustained when the van in which Osborne was a passenger was struck by the car driven by the defendant. At the close of the evidence, the jury entered a verdict for the defendant. The plaintiff moved for the entry of judgment notwithstanding the verdict. The trial court denied this motion. The plaintiff now appeals.

The standard for granting judgment n.o.v. was established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. Under the Pedrick standard, a judgment n.o.v. should be entered "only 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." 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.

• 1, 2 In the instant case, it was not disputed that the defendant's car was partially within the wrong traffic lane when it struck the van. It was also undisputed that the van in which the plaintiff rode was fully within the proper lane. In such a situation, the rule is that the defendant has the burden of proving that the accident was caused by conditions and events other than the defendant's own negligence. (Cruse v. Hines (1981), 92 Ill. App.3d 884, 889, 416 N.E.2d 710, 714.) The issue in the instant case, then, is whether the evidence presented at trial as to the lack of negligence by the defendant, when viewed most favorably to the defendant, so overwhelmingly favors the plaintiff that the jury's verdict for the defendant cannot stand. After a careful review of the record, we find that the trial court did not err in denying the plaintiff's motion for judgment n.o.v.

The defendant testified both under cross-examination by the plaintiff and on his own behalf. According to the defendant's testimony, he left his home at 7:30 a.m. on the morning of January 15, 1981. The temperature of the air was characterized as around freezing or between 10 and 33 degrees. It was dark and misty.

The defendant resided on Detweiller Drive. Detweiller Drive traversed Detweiller Park. The drive had several hills and turns in its course. The defendant normally traveled on the drive to go to work. The defendant testified that the drive was sometimes closed with barricades when the weather made the drive dangerous. There were no barricades in place on January 15. The defendant also testified that even if the drive was not barricaded, he sometimes took an alternate route if he felt that travel on the drive would be hazardous due to the weather.

On the morning of the accident, the defendant drove out of his driveway directly onto Detweiller Drive. He testified that he had no reason to believe that the drive would be slippery. His car had front wheel drive. There was no snow on the roads.

He traveled east for one-tenth of a mile to the point where Detweiller Drive separates into two branches. Once the defendant had passed this point, there was no place to stop or turn around. The defendant took the north branch. He had traveled another four-tenths of a mile when he initially noticed that there were spots of slipperiness on the road. Immediately after he noticed that the road was slippery, the defendant slowed his speed as the car began traveling down a steep hill. Partway down the hill, the rear of the car slid to the left. The defendant testified that when he began to slide, he pumped the brake, turned the wheel in several directions, braked and then released the brake. He attempted to steer the car off the road. However, the car continued to slide sideways down the hill. The defendant estimated the length of the hill as 200 yards.

Halfway down the hill, the defendant saw the van approaching him. The van pulled to the far side of the road against the curb. At the bottom of the hill, the drive curved to the right. The defendant's car did not follow the curve, but continued to slide straight. Consequently, the rear of the defendant's car crossed the median line and went into the opposite lane of traffic. Ultimately, the rear of the car struck the driver's side of the van in which the plaintiff was riding. The distance between the beginning of the car's slide and the point of impact was two-tenths of a mile. Thus, the accident occurred seven-tenths of a mile from the defendant's home.

Following the accident, the Peoria police were called to the scene. An ambulance was called for the plaintiff. While waiting for the police, the plaintiff, the driver of the van and the defendant walked further down the road to avoid being hit by cars coming down the road. Later that morning, the Peoria park district barricaded the road and spread cinders or salt.

The plaintiff argues on appeal that the above facts demonstrate that the accident resulted from the defendant's negligence. The plaintiff asserts that the defendant was negligent in failing to anticipate the road conditions, in traveling at an unsafe speed, and in failing to steer or brake properly. See Calvetti v. Seipp (1967), 37 Ill.2d 596, 227 N.E.2d 758.

We find that the evidence that the accident was caused by factors other than the defendant's negligence, when viewed most favorably to the defendant, does not so overwhelmingly favor the plaintiff that the jury's verdict cannot stand. The defendant presented evidence that he could not anticipate the hazardousness of the road. This evidence was supported both by the park district's failure to take precautions prior to the accident and by the plaintiff's own use of the road. Additionally, the defendant had already passed the point where he could turn around when he first noted the slipperiness.

The defendant testified that when he reached the top of the steep hill, he could see that the hill was going to be slippery. He, therefore, slowed his speed to 5 to 10 miles per hour. It was while proceeding down the hill at this speed that his car slid. ...


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