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10/05/87 the First National Bank of v. Dennis K. Douell

October 5, 1987

ESTATE OF JOSEPH BRAYTON, DECEASED, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

DENNIS K. DOUELL, DEFENDANT-APPELLEE AND CROSS-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THE FIRST NATIONAL BANK OF GENEVA, as Special Adm'r of the

514 N.E.2d 238, 161 Ill. App. 3d 158, 112 Ill. Dec. 772

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

Rehearing denied November 2, 1987 1987.IL.1504

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is an appeal and cross-appeal from a wrongful death action brought by the special administrator of the estate of Joseph Brayton (decedent) on behalf of and for the benefit of decedent's parents and two brothers.

On January 6, 1984, decedent had a collision with defendant, Dennis Douell. Defendant was driving a "step van" which was approximately 7 feet wide and 10 feet high. The collision occurred at the "T" intersection of Eola and Butterfield Roads in Aurora, Illinois. At that intersection, Butterfield Road is a two-lane highway running east and west with a posted speed limit of 55 miles per hour. Eola Road intersects Butterfield from the south and is controlled by a stop sign. There are no traffic controls on Butterfield. Immediately prior to the accident, decedent was stopped at the stop sign on Eola Road. The collision occurred at approximately 5:10 to 5:13 p.m. The sun was on the horizon or had just set, and it was still light out; various witnesses described it as being twilight or dusk. Immediately prior to the accident, defendant was travelling east on Butterfield Road at a rate of speed between 40 and 45 miles per hour. Defendant testified that at the time of the accident and immediately prior thereto, his headlights were on. The driver immediately behind decedent testified that when defendant was about 8 to 10 feet from the intersection, he saw decedent pull out to make a left-hand turn onto Butterfield Road and into the path of defendant. Defendant himself testified that when he was 10 to 15 feet from the intersection, decedent pulled out in front of him. Defendant further testified that he applied his brakes and honked his horn in the same instant the accident occurred. Decedent died on impact. At the time of the accident, decedent was 17 years old and a senior at Geneva High School. He is survived by his parents, an identical twin brother, and one younger brother.

At the Conclusion of the trial, the jury returned a verdict awarding decedent's twin brother $28,000 and awarding his parents and his younger brother $4,000 each, for a total award of $40,000. The jury also found that decedent was 75% at fault for the occurrence. Consequently, the award to the twin brother was reduced to $7,000 and the remaining awards were each reduced to $1,000 for a total net judgment of $10,000. Defendant moved for a judgment notwithstanding the verdict. That motion was denied. Plaintiff filed a timely notice of appeal, and the defendant filed a timely cross-appeal.

We first consider defendant's contention on cross-appeal, that the trial court erred in denying defendant's motion for judgment notwithstanding the verdict.

Defendant argues that the plaintiff pulled out in front of defendant when defendant was so close to the intersection as to render the collision completely unavoidable. In response, plaintiff contends that the evidence produced created a substantial factual dispute as to the cause of the accident. We disagree with plaintiff and reverse the judgment of the trial court.

A judgment notwithstanding the verdict should be entered in those cases in which all the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the 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.

In a factually similar case, the Appellate Court for the Third District upheld a directed verdict in favor of the defendant. (Marsh v. McNeill (1985), 136 Ill. App. 3d 616.) In Marsh, the collision occurred at an intersection where the defendant was driving eastbound and the car in which plaintiffs were riding was headed southbound. Only the southbound frontage road was controlled by a stop sign. In Marsh, the defendant was travelling at approximately 45 miles per hour. The car in which plaintiffs were riding entered the intersection when the defendant's vehicle was approximately 50 feet away. (136 Ill. App. 3d 616, 618.) The defendant 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 ...


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