Murphy v. Vodden

• Decision Date: 28 May 1969
• Docket Number: Gen. No. 68--164
• Citation: 248 N.E.2d 327,109 Ill.App.2d 141
• Parties: LaVerne MURPHY, Administratrix of the Estate of LaWana Murphy, Deceased, Plaintiff-Appellant, v. Harvey J. VODDEN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 327

248 N.E.2d 327

109 Ill.App.2d 141

LaVerne MURPHY, Administratrix of the Estate of LaWana Murphy, Deceased, Plaintiff-Appellant, v. Harvey J. VODDEN, Defendant-Appellee.

Gen. No. 68--164.

Appellate Court of Illinois, Second District.

May 28, 1969.

Joseph A. Rosin, Chicago, for plaintiff-appellant.

Matthews, Jordan, Dean & Suhler, Aurora, for defendant-appellee.

SEIDENFELD, Justice.

A verdict was directed for the defendant at the close of plaintiff's evidence in a suit for wrongful death. The plaintiff appealed on the theory that the court erred in finding in favor of defendant, as a matter of law, on the issues of contributory negligence, proximate cause and defendant's freedom from willful and wanton misconduct.

The accident occurred on March 9th, 1965, shortly after 10:00 P.M. on North Avenue (Illinois State Route 64) at or near its intersection with Edgewood. North Avenue is a four-lane highway with two eastbound and two westbound lanes separated by a double yellow line. There are shoulders abutting the paved portion of the highway.

On the evening of the accident it was cold, and the moisture left on the pavement from a day of thawing had apparently frozen to a glaze, making the road surface slippery in the vicinity of the accident.

The decedent, LaWana Murphy, had left her employment, located on North Avenue approximately five blocks east of the scene of the occurrence, shortly after 10:00 P.M., and proceeded in a westerly direction on North Avenue.

Florence Adkins, a co-worker of the decedent, testified that she was a passenger in a car driven by her father westbound on North Avenue and directly behind the Murphy car. She testified that shortly after leaving the place of her employment, because of extremely slippery conditions, her father slowed down to a speed of ten or twelve miles per hour. He was traveling in the inner lane. The Murphy car was two or three car lengths in front of her father's car, also traveling at approximately ten to twelve miles per hour in the outer lane. The Murphy car slid from the outer lane into the inner lane in front of her father's car, at which time her father took his foot off the gas and slowed down to about eight miles per hour. The Murphy car similarly slowed down. The Murphy car then went into the outer lane, continued for a short distance, then went out of control again and slid all the way across the east bound traffic lanes of North Avenue onto the south shoulder of the highway and came to a rest fully off the paved portion of North Avenue. She observed the position of the Murphy car as her father passed. Her father then proceeded in a westerly direction at a speed of eight to twelve miles per hour, and after going approximately three or three and one-half blocks she heard a loud crash.

On cross examination, the witness admitted that she had given defense counsel a court reporter's statement in which she said that she was in a vehicle behind that of decedent; and that she watched decedent's automobile slide out of control into the eastbound traffic lane where she saw defendant's automobile strike the vehicle of decedent. In the statement she then proceeded to describe how the collision rocked decedent's vehicle and pushed it sideways.

The explanation offered by the witness as to why she had told a different story of what she witnessed in plaintiff's case was that she 'was not under oath' when she gave the statement to defendant's counsel.

Jim Stockham testified that he was traveling westbound on North Avenue and the Murphy car was two or three cars in front of him. He testified that the highway was extremely slippery and he was compelled to travel at a very slow rate of speed. He noticed the Murphy car swerve completely across the eastbound traffic lanes. As he passed the Murphy car it was his impression that the car was almost completely on the south shoulder of the highway. He proceeded in a westerly direction and after traveling approximately a block and a half heard a loud crash. Mr. Stockham was a fellow parishioner of decedent and decedent's family in a local church.

The investigating police officers, Fred Duwrant and Clarence Mack, testified that they received a radio call shortly after 10:00 P.M. relative to the accident. At that time they were west of the scene of the accident and proceeded on North Avenue in an easterly direction. As they approached from the west at some distance North Avenue was relatively dry, but approximately five blocks from the scene North Avenue was covered with a glaze of ice and became exceptionally slippery so that the officers were compelled to proceed to the scene of the accident for this five-block distance at a very slow rate of speed.

When they arrived on the scene they found the two automobiles, the occupants having already been taken to the hospital. They testified that the Murphy car was completely on the south shoulder of the highway facing in a southerly direction and the right side thereof was caved in and the car completely demolished. The Vodden car was also mainly off the highway, and the left rear portion and wheel was on the roadway. Extensive damage was shown to the left front end.

The officers also testified that they found debris on the south shoulder of the highway and the southernmost edge of the outer eastbound traffic lane.

Deputy Duwrant testified that, in his opinion, and impact occurred in the outer eastbound traffic lane.

Robert Quackenbush, a tow truck operator, corroborated the officers' testimony as to the location of the cars on the shoulder of the highway and the finding of debris on the shoulder of the outermost edge of the eastbound traffic lane.

The defendant, Harvey J. Vodden, was called under Section 60, Ill.Rev.Stat.1967, c. 110, § 60. He testified that approximately four blocks west of the accident scene he had been traveling forty to forty-five miles per hour; that when he first observed the Murphy car he slowed to thirty miles per hour. He first noticed the Murphy car crossing the center line of the inner eastbound lane when it was 100 feet away. He applied his brakes when he was about 50 feet away from the point of impact. His speed when he applied his brakes was thirty miles per hour. He further testified that his car did not slide when he applied his brakes.

Vodden placed the impact in the outside eastbound traffic lane near the south shoulder of the highway and testified that decedent's car was moving in a southwesterly direction across the eastbound traffic lanes at the time of the impact. He denied that decedent's car was standing still near the east edge of the pavement at the time of the impact.

On examination, Vodden was confronted by his deposition wherein he testified that, at the time of the accident, both cars were off the pavement and on the shoulder of the highway, and he further testified that at the time he was so deposed that is where he thought the accident had happened.

Both parties seek support in the Pedrick rule. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967)).

This, of course, involves a determination of whether all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendant, that no contrary verdict based on the evidence could ever stand.

The rule, however, does not allow the trial court to substitute its judgment for that of the jury, if there is any substantial factual dispute. Pedrick, supra, at page 504, 229 N.E.2d 504. The issues of negligence, contributory negligence, or willful and wanton misconduct may be proven by facts and circumstances from which such...