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11/10/88 Joseph v. Cherry Et Al.

November 10, 1988

JOSEPH

v.

CHERRY ET AL., PLAINTIFFS-APPELLANTS,

v.

MICHAEL G. MCDONALD ET AL., DEFENDANTS (MICHAEL D. MCDONALD, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 78, 176 Ill. App. 3d 471, 125 Ill. Dec. 899 1988.IL.1634

Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiffs appeal a jury verdict in defendants', Michael G. McDonald and Michael D. McDonald (Michael), favor in a negligence action stemming from an automobile accident. Plaintiffs argue the jury's verdict is contrary to the manifest weight of the evidence, the trial court erred in denying plaintiffs' motion for a directed verdict, and the verdict cannot stand in light of modern trends in the doctrine of comparative fault.

We affirm.

The genesis of this action is an automobile accident that occurred on January 13, 1984, at approximately 5:30 p.m. Michael D. McDonald was driving eastbound on Interstate 72 toward Mahomet, Illinois. Michael began to experience problems with his vehicle and attempted to pull off the highway into an authorized vehicle turnaround. As Michael slowed to make the turn, he was struck from behind by a semitrailer truck driven by Christopher C. Thornton. The truck was owned by McBride's Express, Inc. The truck tipped over onto its side and came to rest with the cab in the median and the trailer lying across Interstate 72. The eastbound passing lane was completely blocked by the trailer. The trailer also extended into a portion of the driving lane. Approximately 5 to 10 minutes after the initial collision, plaintiff Joseph Cherry (Joseph) collided with the semitrailer truck. A third collision occurred shortly thereafter when a Volkswagen driven by Margaret Ross collided with the trailer of the overturned semi. Joseph Cherry and his wife, plaintiffs, sued Michael, Michael's father, Thornton, and McBride's Express, Inc. This appeal concerns Michael and his father., PLAINTIFFS' CASE

The plaintiffs called Michael as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102.) Michael was 16 years old when the accident occurred. He testified that he left White Heath, Illinois, shortly after 5 p.m. From White Heath he drove eastbound on Interstate 72 toward Mahomet. The lanes of the road are 12 feet wide and the shoulder of the road is 8 to 10 feet wide. Interstate 72 is a four-lane divided highway in good repair. It was dusk when Michael began his trip. Michael was driving with his headlights on and there were other vehicles on the highway.

Michael testified that shortly after he left White Heath, he noticed a ticking noise coming from the engine of his car. He recognized the sound as an indication that the car needed oil. Therefore, he planned to turn into an authorized vehicle's turnaround so he could check his car and return to the Clinton exit. Approximately 30 seconds before he started to turn off the highway, Michael saw the semi in the left lane behind him. Michael stated that he had moved from the right-hand lane into the left-hand lane with the truck behind him. He estimated that he was driving approximately 50 to 55 miles per hour. Michael stated, however, that he slowed to approximately 30 miles per hour prior to making his turn. He used his turn signals.

As Michael changed lanes, he looked into his rear-view mirror and saw the headlights of the truck. Michael stated the truck's lights were dim and seemed a good distance behind him. He continued to travel in the left-hand lane. At this point in time, he began to slow down gradually and prepared to enter the turnaround. As Michael began to enter the turnaround, he was hit from behind and thrown in a northeast direction. Michael did not remember seeing the truck approach his vehicle nor did he make any quick decrease in speed prior to the collision. After impact, the semitrailer tipped over onto its side and came to rest partly on the highway and partly in the median. The truck was completely blocking the eastbound passing lane and extended into the driving lane a little over the dividing line.

Michael stated he exited his vehicle and proceeded to the truck, then he started walking toward a vehicle which had come to assist them. Michael saw Joseph's car collide with the back of the trailer. As Joseph's car approached the truck, Michael was walking west on the side of the road approximately one-fourth of a mile away from the truck near the Randy Bimes vehicle. Four or five cars had passed the overturned trailer prior to the impact involving Joseph, which occurred about 10 minutes after the first impact.

The plaintiffs next called Thornton as an adverse witness. Thornton stated that he has been employed by McBride's Express, Inc., as an over-the-road driver. Thornton left Decatur at approximately 5 p.m. and was headed east on Interstate 72. He was traveling at approximately 50 to 55 miles per hour in the right-hand lane until approximately one mile prior to the accident. It was just beginning to get dark and the road was dry and clear. At that time, Thornton noticed two sets of taillights in the right-hand lane in front of him. Thornton moved into the left-hand lane to pass these two cars. Thornton continued to drive at approximately 50 to 55 miles per hour. He caught up with the first car and attempted to pass. Thornton was alongside the first car when Michael's car, the lead car, made a quick movement into the left-hand lane and applied the brakes.

Thornton further testified that he applied his brakes but was unable to stop. His truck collided with the back of Michael's car and capsized. It blocked the passing lane and about two feet of the driving lane. After his truck came to a rest, it took Thornton approximately two to three minutes to exit the cab. He then went to see if anyone was hurt and talked to Michael. Thornton did not put out flares or fuses and there were no lights on the belly of the truck. Soon after he exited the cab, someone yelled, "This guy is not going to stop." Thornton witnessed Joseph's vehicle collide with the trailer of the truck. Thornton stated he did not hear the engine of Joseph's car slow down prior to the collision, but the car swerved slightly to the right before impact. Joseph's accident ...


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