Mueller v. Sangamo Const. Co.

• Citation: 338 N.E.2d 1,61 Ill.2d 441
• Decision Date: 26 September 1975
• Docket Number: No. 47006,47006
• Parties: Robert L. MUELLER, Adm'r, et al., Appellants, v. SANGAMO CONSTRUCTION CO., Appellee.
• Court: Supreme Court of Illinois

Page 1

338 N.E.2d 1

61 Ill.2d 441

Robert L. MUELLER, Adm'r, et al., Appellants, v. SANGAMO CONSTRUCTION CO., Appellee.

No. 47006.

Supreme Court of Illinois.

Sept. 26, 1975.

Rehearing Denied Nov. 21, 1975.

Robert L. Mueller, pro se, and James T. Londrigan, Springfield, for appellants.

Walter J. Simhauser, Springfield, for appellee.

UNDERWOOD, Chief Justice:

The principal issue in this case is whether all of the evidence, when viewed in its aspect most favorable to plaintiffs Robert L. Mueller, administrator of the estate of Willard H. Maberry, and Betty L. Maberry, his widow so overwhelmingly favors the defendant, Sangamo Construction Co., that a verdict for plaintiffs can never stand. (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504.) A subsidiary issue is whether an absence of due care on decedent's part precludes recovery by his widow of funeral expenses. Ill.Rev.Stat.1973, ch. 68, par. 15.

Plaintiffs filed in the circuit court of Sangamon County a two-count amended complaint in the first count of which the administrator sought to recover damages under the Wrongful Death Act (Ill.Rev.Stat.1973, ch. 70, par. 1 Et seq.); recovery of funeral expenses was sought by the widow in count II. A jury returned verdicts in the amount of $90,000 for wrongful death and $2,199.50 for expenses, upon which the trial court entered judgment. The appellate court reversed (20 Ill.App.3d 602, 314 N.E.2d 700), and we allowed plaintiff's petition for leave to appeal.

Decedent, Willard H. Maberry, was killed while driving a 51-foot tractor and trailer unit northward on what was then U.S. Route 66 south of Springfield. The accident occurred a short distance south of the point where the divided highway crossed a portion of Lake Springfield on separate, but parallel bridges. Defendant, Sangamo Construction Co., pursuant to a contract with the State, was responsible for constructing the highway approaches to the bridges.

U.S. Route 66 was then a four-lane highway with the two southbound lanes separated from the two northbound lanes by a grassy median strip. During construction of the new, easternmost bridge, all traffic was routed over the old, westernmost bridge. This was accomplished by detouring the northbound traffic across the median on a left-curving, temporary blacktop leading to the old bridge.

After construction of the new bridge for northbound traffic had been completed, new blacktop pavement was laid continuing the northbound lanes northward around a curve and across the new bridge. This newer surface, at its joinder with the existing lanes, was slightly darker. The center line of the existing lanes was continued northward, with a slight deviation, by applying white, reflecting paint to the surface of the newer pavement, as was the white, reflecting strip along the righthand edge of the pavement. 'Lane delineators,' steel posts with white reflectors, were also placed at intervals of 50 feet along the right shoulder of the highway through this area.

While the detour to the old bridge had been in use the center line of the northbound lanes had followed the curve of the detour to the left. After the new center line leading to the new bridge had been painted on, the old one was still visible, despite attempts to erase it, although much less visible than the new line, and the two lines diverged in what resembled a large 'V'. Weighted 55-gallon steel drums with 'hazard markers' extending 4 feet above the barrels were spaced 50 feet apart along the left-hand edge of the northbound lanes through the area where the old detour had been. The barrels had horizontal stripes of reflecting white paint, and the 'hazard markers' had alternating, diagonal stripes of black paint and reflectorized white tape impregnated with glass beads. There was testimony by State Troopers and the highway engineer that the barrels were frequently moved, as a result of being struck, from their designated positions but that the markers were in place late in the afternoon or early evening of the day of the accident. There was no artificial lighting in the area, and the witnesses characterized the whole construction area as a hazardous one.

After the detour to the old bridge had been abandoned, a pile of rubble consisting of chunks of broken concrete and blacktop accumulated on the former roadway. Because of its distance from both north and southbound lanes, the highway engineers did not consider it hazardous, and it was neither lighted nor marked. Its size was estimated at 10 to 20 feet in diameter and 3 1/2 to 5 feet in height, and it had existed for a period estimated by witnesses from 1 week to 2 to 3 months. Apart from this pile, the surface of the old detour was covered with loose and rough disintegrated asphalt.

The testimony further established that some 2000 feet south of the point at which the old detour had left the highway there were reflectorized signs on each side of the northbound lanes warning 'Road Construction Ahead, 45 M.P.H.'; approximately 500 feet further north similarly situated signs indicated a curve to the left, and reflectorized signs some 500 feet north of those warned 'Detour Ahead.'

Earl Gwillim, a truck owner and operator who owned the truck driven by decedent, testified that the driver of that truck sat some 5 feet above the ground and had a better view of the road ahead than a car driver; that decedent, recently returned from Viet Nam where he had served in an armed forces motor pool, had worked for him some 10 days to 2 weeks and as a driver for other employers previously; that decedent had made two trips over the same route at night during the week preceding the accident; that at the time of the accident the truck was loaded with approximately 43,000--49,000 pounds of sheet steel; that the tractor-trailer unit when so loaded and traveling 40--50 miles per hour could be stopped on a concrete highway within 275--300 feet without 'locking' the wheels, that locking them might cause the steel sheeting to move forward into the truck cab, but that it was safe to use normal braking pressures; that the witness had driven trucks over this area and had caught himself following the old center line.

Paul Bains, a truck driver and eyewitness, was in his car 200--300 feet behind decedent. He estimated decedent was traveling 40 to 50 miles per hour, and further stated that the truck moved from the right to the left lane, and that it did not slow down nor did the stoplights or turn signal come on either before or after decedent ran off the road; that other trucks with their lights on were coming from the north in the southbound lanes; that as the truck left the road he saw 'something' flying through the air and that it could have been one of the barrels; that there was a mashed barrel and hazard marker underneath the tractor drive wheels when the tractor came to rest atop the rubble pile.

State Trooper Garwood testified that the truck came to rest with the cab on top of the rubble pile; that the 'right front' of the stopped tractor was 28 feet from the edge of the northbound roadway and 233 feet from the point where the detour left the roadway; that the surface of the old detour was rougher and that there were no skid marks.

The accident occurred about 11 p.m. when decedent apparently followed the partially erased, but still visible, old center-line onto the original detour and collided with the rubble pile. Sheets of steel 'like a deck of cards' were found in front of the tractor, and it is apparent that the upper part of the tractor cab was sheared off when the force of the impact caused the steel sheeting to burst its bindings and move forward through the cab.

The trial judge denied defendant's motion for a directed verdict because he was under the impression that Bains had testified that decedent had reduced his speed upon entering the construction area. In fact, Bains' testimony is that he did not observe any reduction in the truck's speed.

The appellate court reversed the trial court judgment for plaintiff stating 'the credibile evidence in this record negates any reasonable inference that he was in the exercise of due care and caution for his own safety.' We agree.

Our cases clearly require that one who seeks damages because of the negligence of another must establish that he has exercised due care for his own safety (Carter v. Winter, 32 Ill.2d 275, 282, 204 N.E.2d 755, and cases there cited), and the absence of such showing, or affirmative evidence of contributory negligence, will bar such an action. Coleman v. Illinois Central R.R. Co., 59 Ill.2d 13, 18, 319 N.E.2d 228.) As we noted in Pedrick, 'Clearly, the constitution...