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05/15/89 Donna Beeler, v. Chem-Lawn Corporation

May 15, 1989

DONNA BEELER, PLAINTIFF-APPELLEE

v.

CHEM-LAWN CORPORATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

539 N.E.2d 290, 183 Ill. App. 3d 648, 131 Ill. Dec. 937 1989.IL.736

Appeal from the Circuit Court of Cook County; the Hon. Louis J. Giliberto, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. MANNING, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an appeal from a directed verdict in favor of the plaintiff, Donna Beeler. The issues presented on appeal are: (1) whether the trial court erred in directing a verdict in favor of the plaintiff on the issue of defendant's negligence, and (2) whether the trial court erred in directing a verdict in favor of the plaintiff on the issue of plaintiff's contributory negligence. We reverse and remand.

This appeal arises out of a suit to recover for personal injuries incurred as a result of a collision between a truck driven by an employee of Chem-Lawn Corporation (Chem-Lawn) and a bicycle ridden by Donna Beeler. At the time of the collision, plaintiff was travelling in the far right-hand lane of U.S. 14 eastbound on or near the exit ramp onto Route 68. The collision took place somewhere near the exit ramp but the exact location was in dispute.

Plaintiff testified that her bicycle was properly equipped and she was aware that the vehicle code applied to bicycles. She also testified that while she generally rode to the right of the white line, she had no memory of this accident. The driver of the Chem-Lawn truck, Mr. Hardy, testified that his truck was in good working order, including the brakes and turn signals, and that his truck had an operating speed governor which limited the vehicle's speed to 55 miles per hour.

Hardy stated that prior to the collision, he was following five to six car lengths behind a van. As they approached the exit ramp to Route 68, both vehicles signaled an intention to exit. The driver testified that the van braked a little past the mouth of the ramp and then suddenly swerved off the exit ramp and back onto the highway. He stated that he then saw the plaintiff for the first time and that she was between the middle lane and right-hand side of the lane in the middle of the exit ramp. Defendant testified that at that time, he was on the exit ramp lane and had reduced his speed preparatory to exiting but was unable to react quickly enough to avoid the collision. He stated that he braked hard and turned the vehicle sharply, which caused the truck to tip over on the right-hand side of the exit ramp.

Richard Adams, testifying for the plaintiff, stated that on the day of the accident he was travelling in the opposite direction on Route 14. He testified that both the van and the truck were in the right-hand lane and the bicycle was crossing the Route 68 ramp at the time of the accident. He stated that he saw the van swerve suddenly but that he never actually saw the Chem-Lawn truck hit the bicycle. He further testified that at the time of the accident he was approximately 250 feet from the ramp and that he did not notice the speed of the vehicles prior to the accident.

Paul Halverson, the driver of an automobile travelling behind defendant's truck at the time of the occurrence, testified that he first observed defendant's truck when it passed him about one-half mile before the exit ramp. He testified that in his opinion, the truck had been exceeding the speed limit but later testified that he could not tell if the truck reduced or increased speed as it neared the exit ramp.

Prior to the impact, Halverson was unable to see the plaintiff or her bicycle. At trial, using a photograph, he indicated that at the moment of impact, defendant's truck was in the right-hand lane, rather than on the exit ramp. Halverson also testified that he found plaintiff's body at the point where the exit ramp joins the highway.

Illinois State trooper Sergeant James Jamison arrived at the scene after the accident and conducted an investigation. He testified that he observed 102 feet of skid marks, the majority in the right-hand lane and the remainder curving up the exit ramp and off into a ditch. He also testified that he found a gouge or scuff mark on Route 14 in the far right lane at the point where the exit ramp and the highway join and that he believed the mark designated the point of impact.

At the close of the evidence, plaintiff moved for a directed verdict which the trial court denied on the basis that it was precluded by questions of fact. Plaintiff renewed the motion, and the trial court then sustained plaintiff's motions for directed verdicts that plaintiff was not contributorily negligent and that defendant was negligent as a matter of law. The jury was instructed that a directed verdict had been entered and that the only issue ...


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