Barnes v. Brown

• Decision Date: 10 July 1970
• Docket Number: No. 17746.,17746.
• Citation: Barnes v. Brown, 430 F.2d 578 (7th Cir. 1970)
• Parties: Nickolas L. BARNES, Plaintiff-Appellant, v. Robert L. BROWN, Individually, and Robert L. Brown, d/b/a Brown Trucking Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.2d 578 (1970)

Nickolas L. BARNES, Plaintiff-Appellant, v.Robert L. BROWN, Individually, and Robert L. Brown, d/b/a Brown Trucking Company, Defendant-Appellee.

No. 17746.

United States Court of Appeals, Seventh Circuit.

July 10, 1970.

Richard L. Mandel, Alfred R. Lipton, Chicago, Ill., for plaintiff-appellant; Terry Y. Feiertag, Chicago, Ill., of counsel.

Joseph B. Lederleitner, Timothy J. Gillick, Pretzel, Stouffer, Nolan & Rooney, Chicago, Ill., for defendant-appellee.

Before HASTINGS, Senior Circuit Judge, and KILEY and KERNER, Circuit Judges.

KILEY, Circuit Judge.

The jury in this diversity personal injury case returned a general verdict for plaintiff Barnes for $1,000.00, but answered "Yes" to a special interrogatory whether he was guilty of contributory negligence proximately causing his injury.The district court nullified the general verdict, entered judgment on the special verdict and overruled Barnes' motion for new trial.He has appealed.We affirm.

On July 21, 1965, about 8:00 a.m., both Barnes in a passenger car, and defendant Brown in a tractor-trailer, were driving west on Illinois four-lane highway Route 64 in DuPage County.Barnes was in the inner westbound lane, Brown in the outer lane.A third person, Vaughn, was driving east in the inner eastbound lane.At the highway's intersection with Bloomingdale Road, there were stop and go traffic signals.At about fifty yards east of Bloomingdale Road, Brown turned into the inner lane and struck Barnes' car, forcing it into the eastbound inner lane where his car collided with Vaughn's car coming in the opposite direction.

Barnes contends there is no evidence to support the special verdict.We disagree.

He argues that there is no evidence that Brown saw Barnes' car before the accident; that the only evidence is that when Vaughn first saw Barnes and Brown approaching about 150 or 200 yards east of the intersection, Barnes was in the process of passing Brown; that Brown gave no warning that he was turning into the inner lane; and that Barnes sounded his horn and tried to avoid the collision by applying his brakes.

This is not the only evidence.There is evidence that Barnes had been traveling behind the Brown tractor-trailer, turned into the inner lane to pass, and was "just starting to pass" the 50-foot unit when, about 300 yards from the intersection, he saw a man at the intersection standing at the shoulder of the road with a red flag "telling" the traffic to move over into the inner westbound lane "because they were repairing something," and that Barnes was "going 65" miles an hour as he approached the intersection.

There was also testimony that there was an incline in the highway east of, with a down grade to, the intersection; that Brown slowed down from 40 to 20 miles per hour on the down grade, waiting for a change from a stop to a go signal; that about 50 yards from the intersection Barnesat 65 miles per hour attempted to pass; and that Brown had looked in his rear mirror after seeing the red flag warning, "couldn't see" any traffic behind him, and turned gradually into the inner lane.

Under these circumstances the jury, if it took as true the evidence favorable to Brown, could well infer that Brown exercised due care and that Barnes was guilty of negligence in failing to slow down when he observed the man with the danger signal direct traffic and did not then anticipate that Brown would probably follow the directions; that Brown could not see Barnes coming when Brown looked, because Barnes had not yet begun to pass and was directly behind the Brown unit in the "blind spot" of the rear view mirror; and that Barnes' negligence proximately caused his injury.

A consideration of the entire evidence of Barnes, Brown and Vaughn refutes Barnes' further contention that the special verdict was against the manifest weight of evidence.¹

Barnes contends that the district court's instructions 9 and 13, in view of the inconsistent verdicts, confused the jury, and that the court abused its discretion in denying Barnes' motion for new trial.

Instruction 9 told the jury of Barnes' duty of ordinary care before and at the time of the occurrence, saying that duty meant "to be free from contributory negligence."Instruction 13 dealt with Barnes' burden of proof, i.e., that he used ordinary care, that Brown was guilty of negligence,...