Seaman v. Wallace, 4-90-0039

• Decision Date: 11 October 1990
• Docket Number: No. 4-90-0039,4-90-0039
• Citation: 149 Ill.Dec. 628,204 Ill.App.3d 619,561 N.E.2d 1324
• Parties: , 149 Ill.Dec. 628 Vickie R. SEAMAN, Administrator of the Estate of Wilbur D. Seaman, Vickie R. Seaman, as mother and next friend of Rae Ellen Seaman, and as mother and next friend of Christina Jean Seaman and Jacob Dean Seaman, and Vickie R. Seaman, individually, Plaintiffs and Counterdefendants-Appellants, v. Lloyd R. WALLACE and Herbert Trucking, Inc., an Illinois corporation, Defendants and Counterplaintiffs-Appellees.
• Court: United States Appellate Court of Illinois

Page 1324

561 N.E.2d 1324

204 Ill.App.3d 619, 149 Ill.Dec. 628

Vickie R. SEAMAN, Administrator of the Estate of Wilbur D.

Seaman, Vickie R. Seaman, as mother and next friend of Rae

Ellen Seaman, and as mother and next friend of Christina

Jean Seaman and Jacob Dean Seaman, and Vickie R. Seaman, individually, Plaintiffs and Counterdefendants-Appellants, v. Lloyd R. WALLACE and Herbert Trucking, Inc., an Illinois

corporation, Defendants and Counterplaintiffs-Appellees.

No. 4-90-0039.

Appellate Court of Illinois,

Fourth District.

Oct. 11, 1990.

Edward H. Rawles, Reno, O'Byrne & Kepley, P.C., Champaign, for plaintiffs and counterdefendants-appellants.

Robert D. Winters, Armstrong, Winters, Prince, Featherstun & Johnson, Decatur, for defendants and counterplaintiffs-appellees.

Justice SPITZ delivered the opinion of the court:

This is an appeal from a jury finding for plaintiffs in their cause of action against defendants arising from an automobile collision. Plaintiffs appeal the apportionment of fault and the award of zero damages for the loss of consortium.

Plaintiff Vickie Seaman brought suit against defendants Lloyd R. Wallace and Herbert Trucking, Inc., individually; as administrator of the estate of Wilbur D. Seaman; and as mother and as mother and next friend of Rae Ellen Seaman, Christina Jean and Jacob Dean Seaman. Plaintiffs sought damages for wrongful death and personal injuries sustained as a result of a collision between a pickup truck driven by decedent Wilbur Seaman, and occupied by decedent's daughter, Rae Ellen, and a tractor-trailer-tanker driven by Lloyd Wallace. Plaintiffs' complaint included causes of actions for (1) the wrongful death of decedent; (2) a survival action for the 28 days decedent lived after the collision; (3) an action for the medical, funeral and burial expenses related to decedent; and (4) a count for loss of consortium for his wife, Vickie Seaman, individually. Vickie Seaman also brought an action (5) as mother and next friend of Rae Ellen Seaman for personal injuries suffered in the accident. Plaintiffs based each count on defendants' alleged neglect and wilful and wanton acts.

Defendants filed a counterclaim for contribution against plaintiff Vickie Seaman as administrator of the estate of Wilbur Seaman. The counterclaim sought contribution from the administrator on any judgment entered on the claim of Rae Ellen Seaman for fault attributed to Wilbur Seaman.

I. TRIAL

The accident in question occurred at approximately 3:30 p.m., November 24, 1986, at an intersection of two country roads, McDonald Road and Ridlen Road. The site is approximately two miles west and one mile south of Dalton City, in Macon County, Illinois. Defendant Wallace was operating a tractor-trailer-tanker owned by his employer, Herbert Trucking, Inc., and was traveling south on McDonald Road (a north-south road). Wilbur Seaman was driving a pickup truck, with his daughter Rae Ellen as a passenger, in an easterly direction on Ridlen Road (an east-west road). The intersection of the two roads was open, with no traffic-control devices, stop signs, or yield signs at any point of the intersection. There were no obstructions to the views of drivers of vehicles approaching the intersection from the north on McDonald Road or from the west on Ridlen Road within a half-mile area of the intersection.

The only eyewitness testimony at trial concerning the accident was that of defendant Wallace, the driver of the tanker. Wallace testified that he had been employed at Herbert Trucking in Macon, Illinois, since March 1986. The tractor-trailer involved in the accident was 53 feet long, weighed an estimated 60,000 pounds with a full load, and had five axles, three on the cab, and two on the rear of the trailer. The tractor-trailer was owned by Herbert Trucking. Wallace had been hauling loads of liquified lime fertilizer since 6 a.m. that morning from a plant in Decatur to various farm locations. As Wallace approached the intersection with a full load of liquified lime, the sun was shining, but it was a bit hazy. The roads at the intersection were flat oil-and-chip roads and were dry at the time. This was the first time Wallace drove the tractor-trailer on this road. Wallace approached the intersection from the north on McDonald Road. After stopping at a stop sign, Wallace started up and achieved a speed of about 32 or 33 miles per hour.

Approximately a quarter mile north of Ridlen Road, Wallace looked right (west) onto Ridlen to check for traffic. Wallace saw a clear road with some farm buildings half a mile up the road. The sun interfered "a little bit" with Wallace's vision, but "not a great amount." Wallace did not consider slowing down, however, and the haze did not affect his ability to see the farm buildings, or to later see the pickup truck. Wallace looked to the left for traffic and saw no cars. From this point on, and until the accident, Wallace never reduced his speed. At approximately 275 feet before the intersection, Wallace saw decedent's pickup approaching the intersection. Wallace judged the pickup to be approximately one-eighth of a mile, or 660 feet, from the intersection at that time. Wallace was traveling at approximately 32 to 34 miles per hour at this time and believed the pickup was "running close to 60 miles an hour, or maybe faster at that time." Wallace based this opinion as to the pickup truck's speed on a "quick look." Wallace had no special training, or other experience, which would have trained him to make an estimate of thedistance or speed of a moving object. In a written report given to the investigating deputy sheriff the evening of the accident, Wallace made no mention of the speed of the Seaman pickup.

From the time he saw the pickup, Wallace never reduced his speed and never applied the brakes before entering the intersection. According to Wallace, his brakes were in good working order on the day of the accident. When Wallace was between 100 to 150 feet from the intersection, he accelerated. In his deposition, Wallace admitting giving the tractor-trailer full throttle. Wallace did not measure the 100 to 150 feet, but instead arrived at the figure using his "best judgment." Wallace did not know how far the pickup was from the intersection when he decided to accelerate.

When the front of Wallace's tractor crossed the south line of the intersection, but while the trailer of his vehicle was still in the intersection, Wallace felt the impact of the Seaman pickup colliding with his trailer. The pickup became lodged under the tanker and was dragged as the tractor-trailer continued through the intersection and until it came to a stop. At the moment of impact, Wallace believed he was traveling at 32 to 33 miles per hour and that the front of the trailer portion of his rig was 25 feet south of the center of the intersection. Wallace did not apply the brakes of his tractor after the impact and was was not sure whether the brakes on his tractor-trailer locked up after the accident. However, Wallace later testified that the air brakes on his tractor-trailer were engaged because the air line was broken by the impact. After the accident, the tractor-trailer ultimately stopped 140 feet from the intersection. The front of the pickup was protruding from the driver's side of tractor-trailer. Although the tractor-trailer was driven from the scene of the accident, the first of the two axles on the rear of the tanker where the pickup hit was bent and had to be replaced.

After the accident, Wallace prepared a written statement for deputy sheriff David Buker. This written statement included:

"I was driving south on a country road two miles west and one mile south of Dalton City, Illinois. As I approached the intersection I looked both ways, but the sun was in my eyes and didn't notice the truck at first. When I did see it I knew I couldn't stop, but thought I would get across the intersection before the other truck got there. At about the time I thought I had cleared the crossing I heard the truck hit the one I was driving."

Wallace further testified that he had never made an emergency stop before, but knew what would happen if he slammed on the brakes in this type of situation. Wallace had been told not to apply the brakes suddenly. Wallace also did not know how fast the truck would stop if he slammed on the brakes.

David Buker, a detective with the Macon County sheriff's department, also testified. Buker investigated the scene of the accident. When Buker arrived at the accident scene, the vehicles were located approximately 200 feet south of the intersection. As a result of the impact, the rear of the tanker went off the side of the road on the east side of McDonald. Buker believed the entire set of dual wheels of the trailer was off the road. The front of the pickup was underneath the tanker, with the front end coming out slightly on the east side of the tanker.

The front axle of the pickup truck was approximately 149 feet south of the intersection. The rear of the tractor-trailer was approximately 140 feet 6 inches from the intersection. Buker also observed the rear tandem dual wheels of the tractor-trailer. Buker believed the Seaman vehicle hit the tractor-trailer just before the front of the rear dual wheels and that the impact knocked them out of alignment. Buker also believed the changed wheel alignment pulled the tractor-trailer off the side of the road by steering the trailer in that direction. Buker did not think the physical force of the impact completely drove the trailer off the side of the road.

Buker then described the tire marks made by the pickup in attempting to avoid the accident. The total distance of the brake skid was 161 feet. Buker later testified that the skid marks would be closer to 171 or 172 feet when including the skid marks through the intersection. In addition to the skid marks, there were indications that the pickup's brakes had been applied 15...