Campbell v. Ragel

• Decision Date: 03 October 1955
• Docket Number: No. 55-M-17,55-M-17
• Citation: 7 Ill.App.2d 301,129 N.E.2d 451
• Parties: W. Evert CAMPBELL, Plaintiff-Appellee, v. Russel J. RAGEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 451

129 N.E.2d 451

7 Ill.App.2d 301

W. Evert CAMPBELL, Plaintiff-Appellee, v. Russel J. RAGEL, Defendant-Appellant.

No. 55-M-17.

Appellate Court of Illinois, Fourth District.

Oct. 3, 1955.

Rehearing Denied Oct. 27, 1955.

Albert & McLaughlin, Will P. Welker, Vandalia, for appellant.

W. F. Sonnemann, Robert G. Burnside, Vandalia, for appellee.

CULBERTSON, Justice.

This is an appeal from the judgment of the Circuit Court of Fayette County entered in favor of plaintiff on a verdict of a jury in the sum of $19,635.00.

The plaintiff, W. Evert Campbell, brought an action to recover for personal injuries and damage to his automobile, against defendant Russel J. Ragel, by reason of damage and injuries sustained in a collision at a right-angle intersection of two rural gravel highways. There were no stop-signs or warning signs posted on either of said roads. The collision occurred about 8:00 o'clock in the morning, on November 29, 1952. Each of the drivers was alone in the vehicle in which he was riding. There were no eyewitnesses in the immediate vicinity of the intersection, except plaintiff and defendant. As a result of the accident plaintiff was rendered unconscious and suffered a dislocation of his second cervical vertebra, and recalls neither the collision nor the facts immediately prior thereto. A physician substantiated that such retrograde amnesia is not unusual in view of the nature of plaintiff's injuries.

A witness who was at a distance of about a quarter of mile from the scene of the accident stated that he saw the two cars approaching each other along the intersecting roads but had no judgment as to the speed of either vehicle. He testified that plaintiff's car reached the intersection first. It was a non-preferential intersection in the sense that there were no stop-signs, etc., and plaintiff entered from the right of defendant's car. Defendant's testimony verified the fact that when he first saw plaintiff's car it was in the intersection ahead of him. On appeal in this Court it is principally contended that the record fails to show by direct or circumstantial evidence that plaintiff was in the exercise of due care and caution and that, accordingly, the Court should have granted the motions of defendant for directed verdict or for judgment notwithstanding the verdict.

Contributory negligence is ordinarily a question of fact for a jury to decide under proper instruction, and becomes a question of law only when the evidence is so insufficient to establish due care that all reasonable minds must reach the conclusion that the facts do not establish due care and caution on part of the individual of whom such due care is required. McManaman v. Johns-Manville Corp., 400 Ill. 423, 430, 81 N.E.2d 137; Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 199, 6 N.E.2d 125. We should note that in the case before us the plaintiff's vehicle approaching from the right had the right-of-way over defendant's vehicle approaching the same intersection from the left (1953 Illinois Revised Statutes, Chapter 95 1/2, Paragraph 165).

The basic question for consideration is whether the due care of plaintiff may be established by circumstantial evidence, in view of the circumstance that plaintiff suffered the amnesia involved by reason of the accident. In death cases the presumption is that a man will obey the natural human instincts prompting the preservation of life and avoidance of danger. Illinois Central R. Co. v. Nowicki, 148 Ill. 29, 34-35, 35 N.E. 358. The Courts in considering this principle have reiterated that since it was not possible to obtain direct and positive testimony as to what the deceased was doing at the instant he received the injury causing his death, the law requires only the highest proof of which the particular case is susceptible, and that a jury could take into consideration, with other facts, the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives. In the case before us the plaintiff is still alive but is completely unable to assist the Court and Jury in determining what was done immediately prior to the accident. The highest proof of which the case is susceptible has been presented through the...