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01/15/87 Paula Drake, Adm'r of the v. Emmett Thomas Harrison

January 15, 1987

PAULA DRAKE, ADM'R OF THE ESTATE OF THEODORE E. DRAKE, DECEASED, PLAINTIFF-APPELLEE AND SEPARATE APPELLANT

v.

EMMETT THOMAS HARRISON, JR., DEFENDANT-APPELLANT (BOBBY G. HARRISON, DEFENDANT AND SEPARATE APPELLEE)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

503 N.E.2d 1072, 151 Ill. App. 3d 1082, 105 Ill. Dec. 66 1987.IL.31

Appeal from the Circuit Court of Jackson County; the Hon. William H. South and the Hon. Robert H. Howerton, Judges, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. KARNS, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

This wrongful-death action arose out of a collision between two pickup trucks. In one pickup truck were defendant Emmett Harrison, Jr., (the driver), defendant Bobby Harrison, and Theodore Drake, plaintiff's decedent. The Jackson County circuit court granted Bobby Harrison's motion for summary judgment. A jury returned a verdict in favor of the plaintiff in the amount of $375,000. The jury found plaintiff's decedent 39% comparatively negligent, reducing the verdict in favor of plaintiff to $228,750. Defendant Emmett Harrison appeals. Plaintiff appeals the summary judgment in favor of Bobby Harrison.

The Harrison truck was driving on a two-lane road in Jackson County when it began to "fishtail." Decedent sat on the right side of the truck's only seat. Ada Davis, driver of the oncoming truck, noticed the fishtailing and stopped her truck after driving it partially off her side of the road. There was no centerline. The Harrison truck continued to fishtail or swerve until it reached the Davis truck. The right-side door of the Harrison truck struck the front of the Davis truck, killing decedent.

The sole occurrence witnesses testifying at trial were Emmett Harrison, Bobby Harrison, Ada Davis, and her husband Tom Davis. A State trooper described the road on which the wreck occurred as follows: it was blacktop, fairly level without steep hills, and fairly straight; there were no potholes; the pavement was 19 to 20 feet wide; the speed limit was 55 miles per hour; and the road was wet from a recent light rain. The Harrisons' and the Davises' descriptions of the road were consistent with the trooper's.

Tom Davis testified as follows: When he first saw the Harrison truck, about half a mile away, it was fishtailing. The witness told his wife to watch that truck. The Harrison truck went straight for a time, then fishtailed again. Mrs. Davis pulled partially off the road to the right and stopped with only the two left-side wheels on the pavement. After the second fishtail the Harrison truck proceeded straight again, then "swerved" four times across both sides of the road. The Harrison truck never left the road. Mr. Davis testified that in his opinion the Davis truck's speed prior to slowing was about 45 miles per hour; the speed of the Harrison truck was 60 to 70 miles per hour as it came toward them and "every bit of sixty" at the point of the wreck; the time from his first sighting of the Harrison truck to the impact was 8 to 10 seconds; in all, the Harrison truck executed two fishtails and four "swerves."

Ada Davis' testimony was essentially the same as her husband's. She described the Harrison truck's initial maneuvers as "fishtails" and later ones as "big weaves." She estimated her truck was stopped for 6 to 10 seconds prior to the impact. She testified the Harrison truck appeared to be about to miss them until it came across the road just prior to the impact. She was cross-examined and testified in part:

"Q. Did it appear that the vehicle went out of control and then came back into control again, is that correct?

A. Yes.

Q. And he never did, apparently, get the vehicle back under control, is that correct?

A. Yes, he got it back under control."

Bobby Harrison testified as follows: "Right before" the accident, decedent reached in front of Bobby, grabbed the steering wheel and pushed up on it, sending the truck into a slide. Emmett tried to control it. The witness did not know the Harrison truck's speed. The witness admitted that at his deposition he said decedent pulled down on the wheel and that the speed of the Harrison truck was 50 to 55 miles per hour.

Emmett Harrison testified as follows: His speed was about 50 miles per hour. He and his passengers were in a jovial mood because they were going home from work. In a "playful mood" decedent reached across Bobby and pushed the steering up, saying as he did so, "Hit that camper, see if I care." The truck went sideways and was out of control until the impact. The witness did not brake until the crash was imminent; then he "locked up" the brakes. The time from decedent's interference to the impact was less than 10 seconds, probably 6 or 8. His vehicle was not off the pavement prior to the wreck. He admitted that in a prior statement he said gravel caused the back end of his truck to come around just prior to the impact.

In his appeal, Emmett Harrison argues the verdict against him and in favor of decedent's administrator was against the manifest weight of the evidence. Specifically, Emmett argues the sole proximate cause of the wreck was decedent's interference with the steering wheel. There was no direct testimonial contradiction of Emmett's and Bobby's testimony regarding decedent's actions. Where the testimony of a witness is neither contradicted by testimony or circumstances, nor inherently improbable, and the witness has not been impeached, that testimony may not be disregarded even by a jury. A jury may not make an affirmative finding that the exact opposite of a witness' testimony is true if there is no evidence to support such a finding. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85-86, 430 N.E.2d 1126, 1127-28.) There was evidence from which the jury could have found decedent's interference with the wheel was not the sole proximate cause of the wreck. The Davises both testified the Harrison truck fishtailed half a mile away, and that between its several aberrant maneuvers, it continued on straight. Mrs. Davis testified that in her opinion the Harrison truck was under control after the fishtails, but even without this express opinion, the timing and distances involved support that Conclusion. Mrs. Davis described the Harrison truck's final maneuvers as "weaves." Mr. Davis described them as four "swerves." Neither term connotes lack of control, in our view. The Davises also testified regarding the Harrison truck's high rate of speed throughout the sequence of events in question. On the whole, we believe this was sufficient circumstantial evidence that Emmett Harrison's failure to exercise due care for decedent's safety was a proximate cause of decedent's death.

Emmett Harrison raises several issues regarding the jury instructions. First, he argues the trial court erred in giving Illinois Pattern Jury Instruction, Civil, No. 15.01 (2d ed. 1971) (hereinafter cited as IPI Civil 2d) in its entirety because it invited the jury to speculate that a third party's negligence was a cause of the wreck. The short version of IPI Civil 2d No. 15.01 defines proximate cause as "a cause which, in natural or probable sequence, produced the injury complained of." The complete instruction adds to the short version: "It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury." Where there is no evidence of a third party's negligence, the long form of IPI Civil 2d No. 15.01 is inapplicable. Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 722, 457 N.E.2d 85, 93; see Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 713, 414 N.E.2d 885, 891.

However, we are not persuaded that Emmett was prejudiced by the trial court's giving IPI Civil 2d No. 15.01 in long form. The test is whether the instructions taken together fully and fairly apprised the jury of the relevant principles. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 723, 457 N.E.2d 85, 93; see Casey v. Baseden (1986), 111 Ill. 2d 341, 349, 490 N.E.2d 4, 7.) Here the jury was thoroughly instructed concerning proximate cause. Instructions given included IPI Civil 2d No. 45.01, modified, instructing the jury to assume 100% represented the total combined negligence of Emmett and decedent and requiring the jury to determine the percentage attributable to decedent; IPI Civil 2d No. A21.02 which states plaintiff has the burden of proof that defendant's negligence was a proximate cause of decedent's injury; and IPI Civil 2d No. 11.01, which defines contributory negligence as negligence on the part of decedent that proximately contributed to cause his death. In light of all of these instructions, we disagree with Emmett's contention that IPI Civil 2d No. 15.01 as given could have caused the jury to speculate that a third person's negligence was a cause of decedent's death. We find no cause for reversal here.

Emmett argues the trial court erred in giving the jury a non-IPI definition of "society" as follows: "The term 'society' means the broad range of mutual benefits which one family member receives from the other including: love, affection, attention, companionship, comfort and protection." The court also gave IPI Civil 2d No. 31.04 (modified), which instructed the jury to consider with respect to damages "[w]hat services, society, companionship and conjugal relationship he might reasonably have been expected to give his wife had he lived"; and IPI Civil 2d No. 32.04, which instructed the jury to fix the reasonable value of the "society, companionship, and conjugal relationship with her husband" of which plaintiff was deprived. Emmett argues defining "society" in a jury ...


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