Citizens Nat. Bank of Decatur v. Doran

• Decision Date: 19 October 1954
• Docket Number: Gen. No. 9955
• Parties: The CITIZENS NATIONAL BANK OF DECATUR, Conservator of the Estate of Vernon A. Hardin, an incompetent person, Plaintiff-Appellee, v. Claude T. DORAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 450

122 N.E.2d 450

3 Ill.App.2d 383

The CITIZENS NATIONAL BANK OF DECATUR, Conservator of the

Estate of Vernon A. Hardin, an incompetent person,

Plaintiff-Appellee, v. Claude T. DORAN, Defendant-Appellant.

Gen. No. 9955.

Appellate Court of Illinois, Third District.

Oct. 19, 1954.

Rehearing Denied Nov. 29, 1954.

McMillen, Garman & Owen, Decatur, for appellant.

Whitley & Whitley, Monroe & McGaughey, Decatur, for appellee.

HIBBS, Justice.

Vernon A. Hardin, in his own proper person, commenced this suit in the Circuit Court of Macon County, Illinois on July 19, 1950 to recover damages for personal injuries as the result of an automobile collision which occurred on January 15, 1950 at the intersection of U. S. Route No. 51, also known as North Main Street, a north and south street, and Division Street, an east and west street, in the City of Decatur, Illinois. The Citizens National Bank of Decatur, Illinois was, by order of the County Court of Macon County, entered January 3, 1952, appointed conservator of the estate of Vernon A. Hardin, an incompetent, duly qualified as such, and thereafter was substituted as a party plaintiff, and the title of the action was changed accordingly. The cause was tried in April, 1953 before a jury which returned a verdict for plaintiff in the sum of $35,000. Judgment for that sum was entered against the defendant. Motions for judgment notwithstanding the verdict, and in the alternative for a new trial, were made and each overruled. Defendant, Claude T. Doran, has appealed from such judgment to this court.

Error is assigned on the order of the trial court denying judgment notwithstanding the verdict; in overruling the motion for new trial on the ground that the verdict is contrary to the manifest weight of the evidence, that the Court erred in refusing certain of defendant's instructions, that incompetent evidence was admitted over objection, and in refusing to permit the defendant to testify on his own behalf at the trial.

U. S. Route 51, also known as North Main Street, is a north and south paved street 46 feet wide between the curbs. Division Street, 25 feet wide from curb to curb, runs east and west and intersects North Main Street at right angles. The regular stop signs had been erected on Division Street. At the northeast corner of the intersection the curb was rounded to about the south line of the east and west crosswalk. There was a steel street light pole weighing 380 pounds embedded in concrete just north of this crosswalk, the base of which is contiguous to the east edge of the curb on Route 51.

On Sunday morning, January 15, 1950, at about 9:30 Vernon A. Hardin, hereinafter referred to as Vernon, was driving an automobile north on Route No. 51 approaching the intersection with Division Street. Wilbert Hardin, a brother of Vernon and hereinafter referred to as Wilbert, was riding on the right side of the front seat. The evidence shows that the weather and the street were each in fair condition, and there was no other traffic on either of the two streets near the intersection.

The evidence shows without contradiction that Vernon was neither physically nor mentally capable of appearing in the case or testifying as a witness. Wilbert was the only eye witness who testified. He stated that his brother was driving between 20 and 25 miles an hour on the east half of the street and at a point 50 to 60 feet south of the intersection saw the defendant's car approaching on Division Street at a distance of 140 to 150 feet from the intersection traveling 40 to 50 miles per hour. When the approaching car was passing the stop sign without stopping, he said to his brother, 'Vernon, he is going to hit us.' He just got through saying this when the collision occurred about midway of the eastern half of the intersection. It was stipulated the Hardin car went out of control into the light pole and as a result such pole was forced over so it leaned into the adjacent tree. The defendant's automobile struck the Hardin vehicle on the left side causing damage from above the front wheel to the rear wheel. Its righthand side from the hood to the rear was badly demolished by the contact with the pole. The front of the right front fender, the right headlight and right side of the front bumper of defendant's car were damaged. The latter came to rest on North Main Street facing southeast with both front wheels over the curb, the right front wheel being in the east and west crosswalk. The damage to the two vehicles and the location of defendant's automobile after the collision shows conclusively that defendant turned left into the intersection striking the left side of the northbound car.

These facts stand uncontradicted in the record. It is, however, contended by the defendant-appellant here that there is no evidence of due care on the part of plaintiff's ward. It is submitted that he failed to keep a look-out for cross traffic and should have, in view of his low rate of speed, applied his brakes in order to avoid a collision.

The issue here raised presents a question of law as to whether upon a full consideration of all the evidence and all reasonable inferences from it most favorable to the appellee there is a total failure or lack of evidence to prove due care on the part of appellee's ward. Heideman v. Kelsey, 414 Ill. 453, 111 N.E.2d 538; Todd v. S. S. Kresge Co., 384 Ill. 524, 52 N.E.2d 206.

It is true that the existence of the stop sign on Division Street did not relieve the appellee's ward from the exercise of due care and caution, yet he had a right to assume that the appellant approaching on Division Street would not negligently fail to reduce his speed as he approached the intersection and would at least have his car under control so as to give preference to the right-of-way of the northbound car. Thomas v. Buchanan, 357 Ill. 270, 277, 192 N.E. 215; Roberts v. Cipfi, 313 Ill.App. 373, 375, 40 N.E.2d 629; Franks v. Childs, 345 Ill.App. 83, 102 N.E.2d 363.

Appellant has cited in support of its contention a number of cases including that of Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901. There an automobile approached an open drawbridge on the public highway. Other cases cited are all suits involving the exercise of due care by travellers on the highway in approaching railroad tracks. None of these cases are applicable to the situation here involved.

Whether plaintiff's ward was in the exercise of due care was essentially a question of fact for the jury to determine from all the evidence and surrounding circumstances.

The Court did not err in overruling the motion for judgment notwithstanding the verdict.

Appellant urges that the manifest weight of the evidence shows appellee's ward to have been operating his automobile at a high and excessive rate of speed which contributed directly to his injury, and therefore, the motion for a new trial should have been granted. In support of this position it is said that the damage to the lefthand side of the car from striking the light pole was so extensive that the automobile must have been traveling at an excessive rate of speed, and the jury had no right to believe the testimony of Wilbert because the photographs in evidence show that from a point 40 or 50 feet south of the intersection he could not see appellant's car 140 to 150 feet to the west.

We have carefully examined the photographic exhibits which the appellant insists show the inability of Wilbert to see the approaching automobile in the manner in which he testified. Those exhibits show that when the witness was approximately 40 or 50 feet south of the intersection, he could have seen a car approaching from the west when it was approximately 140 or 150 feet west of the intersection. Wilbert was the sole eye witness. The credibility of his testimony was for the jury to determine. It is not possible for this Court to say that his description of the manner in which the accident happened and what he saw and observed is so incredible that his testimony is not worthy of belief. We cannot supplant the finding of the jury on this issue. Their determination that appellee's ward was in the exercise of due care and caution is not contrary to the manifest weight of the evidence.

Complaint is made that the Court erred in refusing instructions numbered 16 and 25, both in abstract form, tendered by the appellant. Such alleged error has not been preserved for review by this Court. The report of the proceedings at the trial recites that just prior to the closing arguments the plaintiff and the defendant each tendered to the Court fifteen instructions to be marked 'Given' and read to the jury. The trial court thereupon announced that it was numbering plaintiff's instructions from 1 to 15, both inclusive, and those for defendant from 16 to 30, both inclusive. The Court marked 'Given' plaintiff's instructions numbered 1 to 9, both inclusive, and refused No. 10. It marked 'Given' defendant's instructions 17 to 24, both inclusive, and No. 26 (the latter being abstracted in error as Instruction No. 28) and refused Instructions 16, 25 and 27. What became of defendant's instructions numbered 28, 29 and 30 and plaintiff's instructions 11 to 15, both inclusive, does not appear in the report of the proceedings at the trial, nor do such instructions appear therein. The certificates of the two official shorthand reporters merely recite that they reported all evidence offered rejected or received in the course of the trial in shorthand notes and that the transcript 'contains a full, true and correct transcription of all shorthand notes taken, of all evidence offered, received or rejected during the course of the trial * * *, on behalf of either the plaintiff or the defendant in said cause'. The certificate of the presiding judge merely recites that the Court having examined the transcript 'and being satisfied with the correctness thereof and that the same is all of the evidence heard and...