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08/17/89 Counterplaintiffs and v. Power Company Et Al.

August 17, 1989




(Ron L. Keith, d/b/a Keith Ambulance Service,

et al., Defendants and Counterdefendants

and Counterplaintiffs-Appellees)

543 N.E.2d 525, 187 Ill. App. 3d 614, 135 Ill. Dec. 142 1989.IL.1268

Appeal from the Circuit Court of Douglas County; the Hon. Frank W. Lincoln, Judge, presiding.


JUSTICE SPITZ delivered the opinion of the court. LUND and GREEN, JJ., concur.


Plaintiff Vera Long was injured as a result of a collision between an ambulance in which she was a passenger and a utility truck operated by defendant Robert O. Gallier, an agent and employee of defendant Illinois Power Company (Illinois Power). Also named in plaintiff's lawsuit as defendants were the driver of the ambulance, Joseph C. Patton, the agent and employee of Ron L. Keith, d/b/a Keith Ambulance Service. Keith was present in the ambulance and supervising Patton at the time of the incident. Defendant City of Village Grove (City) is the owner of the ambulance which was leased to Keith.

Illinois Power and the City counterclaimed against each other for property damage to the vehicles. In addition, Illinois Power and Gallier counterclaimed against the remaining defendants for contribution on the plaintiff's personal injury claim. Similarly, Keith, Patton, and the City counterclaimed against Illinois Power and Gallier for contribution on plaintiff's personal injury claim. Gallier also sued Keith, Patton, and the City for Gallier's personal injuries.

After a jury trial conducted in the circuit court of Douglas County, a verdict was returned in favor of plaintiff and against all defendants in the amount of $20,000. The jury apportioned the responsibility to pay the damages as 90% to Illinois Power and Gallier and 10% to the remaining defendants. With regard to property damage, the jury found Illinois Power's damages to be $5,560, but after attributing 90% of the negligence to Illinois Power, awarded only $556. The City's property damage was found to be $22,687.47, and after attributing 10% of the negligence to the City, the jury awarded the City $20,418.72. On the verdict form, concerning the injuries of Gallier, the jury found the total amount of damages suffered by Gallier, without considering reduction of damages due to negligence, to be $0. In attributing negligence, the jury attributed to Gallier 100% of the negligence, ultimately awarding Gallier $0. Judgment was entered on the verdicts on June 30, 1988.

On appeal, Illinois Power and Gallier contend they were entitled to directed verdicts at the close of plaintiff's evidence. They also argue that the apportioning of responsibility to pay plaintiff's judgment on a 90% to 10% basis, as well as the 90% to 10% attribution of comparative negligence on the property damage, were all against the manifest weight of the evidence.

In her case in chief, plaintiff called three occurrence witnesses to testify. Since no issue is raised concerning the medical evidence of plaintiff's injuries, Discussion thereof is omitted. The three occurrence witnesses called by plaintiff were plaintiff, Keith, and Patton. Plaintiff and Keith were passengers in the ambulance. The ambulance had picked up plaintiff and her husband on the morning of November 23, 1984, the Friday following Thanksgiving. Plaintiff testified she had no warning of the impending collision. Keith stated he felt a deceleration of the vehicle prior to the collision, and he also stated he had no warning of the collision.

Patton's testimony was that on November 2, 1984, a Keith Ambulance Service ambulance was called to the residence of Rex and Vera Long in Camargo, Illinois. The purpose of the call was to assist Mr. Long, who was having trouble breathing. Patton was driving the ambulance when it left the Longs' home. The flashing lights on the ambulance were on when the ambulance arrived at the Long residence, and remained on until the collision which ended the ambulance's journey to Mercy Hospital. The automatic siren on the ambulance was turned on and left on when the ambulance arrived in Urbana. The ambulance traveled to Vine Street in Urbana, to University Avenue, and then proceeded westbound on University Avenue.

Patton looked at the ambulance speedometer after he turned onto University Avenue, and noted that his speed was a little less than 35 miles per hour. Carle Hospital is located about three blocks from the intersection of University Avenue and Lincoln Avenue. At its intersection with Lincoln Avenue, University Avenue has two lanes of through traffic in each direction, and turning lanes for left-hand turns onto Lincoln Avenue. Lincoln Avenue at this same intersection also has two lanes for through traffic in each direction, and turning lanes for left-hand turns onto University Avenue.

As the ambulance approached the intersection of University Avenue and Lincoln Avenue, the ambulance was traveling in the left westbound lane for through traffic. As he approached Lincoln Avenue, Patton noticed that the traffic signal facing him was red. The traffic signal continued in a steady red mode as he proceeded into the intersection. As he approached the intersection, Patton looked to the right and noticed a Carle Clinic van stopped and ready to make a left-hand turn. As he approached the intersection he looked to the left and noticed two vehicles, one in the curb lane making a right-hand turn to go east on University, and the other, an Illinois Power truck, proceeding in the next lane over. When Patton first observed the Illinois Power truck, it was about 150 feet from the intersection with University Avenue. When he next observed the Illinois Power truck it was about 30 feet from the intersection and still moving. After noticing the Illinois Power truck the second time, he looked to the right and then collided with the truck. Patton does not recall touching the brake pedal before the impact with the Illinois Power vehicle. When later called as an adverse witness by Illinois Power, Patton estimated the speed of the ambulance was about 25 miles per hour immediately before the collision.

The ambulance came into contact with the Illinois Power vehicle around the back of the door on the passenger's side and in the utility bed. After the collision, the ambulance turned onto its left side, and the truck was propped up against the front of the ambulance, not turned over, but elevated some off the road. The ambulance and the Illinois Power vehicle slid into the Carle Clinic van which was waiting to make a left turn.

At the close of the plaintiff's evidence, Illinois Power and Gallier moved for directed verdicts. The motions were denied.

Gallier was the driver of the Illinois Power vehicle involved in the collision. He was a gas service man for Illinois Power and his vehicle was proceeding north on Lincoln Avenue. Gallier had received a call at approximately 11:30 a.m. Gallier had the windows rolled up in his vehicle. The heater was on low setting, with the fan running. The two-way radio for emergency calls was on in accordance with the instructions of the power company. There was no other type of radio in the vehicle. As he was proceeding north on Lincoln Avenue, Gallier was traveling approximately 20 to 25 miles per hour. He was traveling in the left of the two northbound lanes of through traffic.

Between a block and a half block before the intersection of Lincoln Avenue and University Avenue, Gallier looked at the light at the intersection and noticed it was green. He looked to the right as he approached the intersection and did not see the ambulance. There was a vehicle traveling to the right of the Illinois Power vehicle and there were quite a few cars parked in the parking lot of a repair garage at the southeast corner of the intersection. As Gallier entered into the intersection, the traffic control signal for him was green. Looking east on University Avenue, there is a dip in the road between Carle Hospital and Lincoln Avenue.

When he first saw the ambulance, he was in the middle of the intersection, going into the westbound lanes of traffic of University Avenue. At that time, the ambulance was maybe 30 feet away. He heard the ambulance siren before he saw the ambulance, and when he heard the siren he first looked to the left, not realizing from which direction the sound of the siren was coming. When Gallier looked to the right and saw the ambulance, the first thing he did was shove the accelerator to the floor, hoping he might be able to avoid the ambulance by passing in front of it.

The ambulance siren had a high shrill pitch, which, in the opinion of Gallier, did not seem to penetrate as well as the siren which he had heard on ambulances of another ambulance company which alternates "loud and low, loud and low." Gallier testified he never had trouble hearing this other type of siren through the sound of the two-way radio.

Patton testified that there were three different modes in which the siren could have been set. In response to the question "Isn't there some type of mode where you can attract more attention to yourself?" Patton answered, "I suppose there is, or it would." He further testified he sometimes puts the siren in the mode which attracts more attention when he goes into an intersection with traffic, and he particularly does so when he goes into heavily traveled intersections. Although the intersection of University and Lincoln is a busy intersection, Patton did not recall having changed the siren mode as he approached the intersection.

Patton testified he could have stopped the ambulance when he saw the Illinois Power vehicle the first time, and he probably could have stopped when he saw the vehicle the second time. He would have upset some people in the ambulance, but he could have stopped the ...

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