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Marsh v. Mcneill

OPINION FILED SEPTEMBER 9, 1985.

RUBY MARSH, ADM'R OF THE ESTATE OF WILLIE FAYE MARSH, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

WILLIAM J. MCNEILL ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Will County; the Hon. Vincent J. Cerri, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

This case arose out of a collision that occurred on March 26, 1980, between a semi-truck and trailer owned and driven by William McNeill and a car driven by Sheila Marsh. Willie Faye Marsh, Sheila's mother, was a passenger in the car and died 17 days later as a result of injuries sustained in the collision. Sherrie Marsh, Sheila's sister, was also a passenger in the car and was injured in the collision.

On March 22, 1982, a multicount complaint against William McNeill and Sheila Marsh was filed in the circuit court of Will County. The complaint was brought by Ruby Marsh, as administratrix of the estates of Willie Faye Marsh and Jerry Marsh (Willie's husband), and by Sherrie Marsh. Jerry Marsh died approximately one year after his wife's death of unrelated causes. Counts I, III, V, and VII alleged negligence on the part of McNeill. Counts II, IV, VI, and VIII alleged negligence on the part of Sheila Marsh. McNeill, in turn, filed a third-party complaint against Sheila Marsh pursuant to the provisions of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.).

Prior to trial, the court granted Sheila's motion to dismiss all counts brought against her on the ground that they were barred by the parent-child immunity doctrine. At the close of the plaintiffs' case, the trial court also granted a directed verdict in favor of McNeill against Ruby Marsh, as administratrix of the estates of Willie Marsh and Jerry Marsh, and against Sherrie Marsh. It is from these rulings of the trial court that the plaintiffs appeal.

While the plaintiffs have raised six contentions on appeal, we find that these contentions may be reduced to the following two issues. First, whether the trial court erred in granting a directed verdict in favor of William McNeill. Second, whether the trial court erred in granting Sheila Marsh's motion to dismiss all counts brought against her on the ground that they were barred by the parent-child immunity doctrine.

As to the first issue, it is well established that "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all 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, 510, 229 N.E.2d 504, 513-14.) Where no substantial factual dispute exists, a trial court will direct a verdict "in order to promote the efficient and expeditious administration of justice * * *." 37 Ill.2d 494, 504, 229 N.E.2d 504, 510.

In this case, the collision occurred at the intersection of Frontage Road and Renwick Road in Will County. McNeill was driving eastbound on Renwick Road and Sheila Marsh was driving her parents' car southbound on Frontage Road. Only southbound Frontage Road is controlled by a stop sign. McNeill testified that he first observed Marsh's car when he was 300 feet away from the intersection. He was traveling at approximately 45 miles per hour. The car approached the stop sign and came to a complete stop when he was approximately 200 feet away. The car then pulled ahead two or three feet, but came to a complete stop again. In response, McNeill lifted his foot off the accelerator. He was about 100 feet from the intersection at the time and was traveling at 40 miles per hour. Then, as he was approximately 50 feet away, the car started to cross the intersection.

McNeill attempted to avoid a collision by applying his brakes, either at the same time as impact or a quarter of a second before impact, and also by turning his truck to the right. He did not, however, sound his horn. His speed at the time of the collision was 30 miles per hour. The trial court took judicial notice that a vehicle moving at that speed would travel 44 feet per second. McNeill indicated that only five or six seconds elapsed between the time he first saw the car and the collision and that he observed the car during the whole period.

Sheila Marsh testified that she pulled up to the stop sign and stopped. Her view was not obstructed in either direction. She looked to her right, to her left, to her right again and then proceeded into the intersection. It was at that time that she first saw the truck and a second or less later the collision occurred. Sherrie Marsh also testified. However, she could not remember whether Sheila stopped the car a second time before proceeding into the intersection.

The only significant difference between the testimony of McNeill and Sheila was in regard to the number of times she stopped before proceeding into the intersection. McNeill testified at trial that the car stopped twice. However, he had testified at the coroner's inquest that the car pulled up to the stop sign, stopped, and then slowly eased out. He assumed that the car was just getting ready to cross the intersection after he passed. Sheila Marsh testified that she could not "remember stopping a second time" and that she "didn't stop a second time."

• 1 The plaintiffs contend that a question of fact existed regarding the number of times that Sheila Marsh stopped before proceeding into the intersection. They maintain that this question of fact was critical to the question of liability and was improperly decided by the trial court when it granted McNeill's motion for a directed verdict. We disagree.

Regardless of whether she stopped once or twice, the testimony is uncontradicted that she pulled in front of McNeill and did so when he was only 50 feet away. As mentioned above, Sheila indicated that the collision occurred within a second after she began to cross the intersection. McNeill testified that his speed at the time of the collision was about 30 miles per hour. As aforesaid, the court took judicial notice that he would have been traveling 44 feet per second. Since southbound Frontage Road is controlled by a stop sign, McNeill was driving on a preferential highway. Thus, it was Sheila's duty to stop and then to yield the right-of-way to any vehicle approaching so closely as to constitute an immediate hazard to her proceeding across or into the intersection. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-904(b).) She simply failed to do so.

The plaintiffs contend that McNeill was negligent in not sounding his horn prior to impact. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 12-601.) Initially, we note that McNeill's failure to do so did not constitute negligence per se. (Daly v. Bant (1970), 122 Ill. App.2d 233, 240, 258 N.E.2d 382, 385.) Furthermore, it is understandable that it was because Sheila pulled in front of McNeill when he was only 50 feet away that he was unable to sound his horn at the same time he was swerving and attempting to apply his brakes.

The plaintiffs also contend that McNeill was negligent in not applying his brakes prior to impact. However, McNeill testified that he applied his brakes either at the same time as or a quarter of a second before impact. Again, it was only because Sheila pulled out when he was so close to the intersection that McNeill was unable to apply his brakes in time. Furthermore, as was ...


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