Smith v. Bishop
| Citation | 205 N.E.2d 461,32 Ill.2d 380 |
| Decision Date | 18 March 1965 |
| Docket Number | No. 38926,38926 |
| Parties | Theda SMITH, Appellant, v. Thomas W. BISHOP, Jr., Appellee. |
| Court | Supreme Court of Illinois |
John H. Finfrock and John Alan Appleman, Urbana, for appellant.
Busch, Harrington & Porter, Champaign, for appellee.
Theda Smith brought suit in the circuit court of Champaign County against Thomas W. Bishop, Jr., for personal injuries sustained in an automobile accident. At the conclusion of the trial the court directed a verdict in favor of the plaintiff on the issue of contributory negligence. The jury found the defendant guilty of negligence and awarded damages to the plaintiff in the amount of $50,415. On defendant's appeal the Appellate Court reversed and remanded for a new trial on the ground that there was enough evidence of contributory negligence to make it a question for the jury, and that the trial court erred in directing a verdict on that issue. (Smith v. Bishop, 51 Ill.App.2d 240, 201 N.E.2d 259). The cause is here for further review on a certificate of importance granted by the Appellate Court.
Plaintiff's injuries were incurred on August 23, 1958, when the car in which she was riding with her husband and their three small children crashed into a milk truck driven by defendant. They had taken their son to a physician in Bloomington for treatment of a foot condition and the accident occurred about 11 A.M. as they were traveling southeast along U. S. Route 150 on their way home. Plaintiff's husband was driving. She was seated in the front seat on the right side, with her 5-month-old daughter on her lap and a 4-year-old daughter between her husband and herself. The boy was in the back seat. As they rounded a curve going above 60 miles per hour she saw a milk truck traveling in the same direction. It was proceeding about 45 miles per hour but slowing down. They started to pass the truck as it eased over a little to the right, but when they were within some 75 feet of it, it turned left in front of them and headed into a farm driveway. She screamed and shouted 'Look out!' Her husband pulled to the right but collided with the left rear corner of the truck. He and their two small daughters were killed. The plaintiff and the boy were seriously injured. The evidence shows that the highway was then in the process of being widened. The left lane was eleven feet wide but the right one was only nine feet, with a 6-inch 'drop-off' on the edge. The bed of the milk truck was about eight feet wide. It further appears that the truck driver had turned on his left-turn signals as he rounded the curve, some 600 feet from the farm driveway, and that at least the front ones remained blinking all the way. The rear directional lights were fastened to the chassis under an overhanging truck bed about three feet from the rear of the bed and two feet in from the edge. Plaintiff did not see them. According to the defendant's testimony he looked into his rear-view mirror before he made the turn, and saw a car coming from behind just rounding the curve. He said he did not know there was one close enough to pass him.
In reversing the judgment the Appellate Court thought the plaintiff had a duty to warn her husband of approaching danger, and since she said nothing until it was too late there was enough evidence of negligence on her part to require submission of the question to the jury. The plaintiff argues on this appeal that requiring a passenger to keep a lookout, warn the driver and so on is no longer realistic under modern conditions of automobile traffic, that except under very unusual circumstances the passenger's duty is not to engage in backseat driving but to refrain from interfering with control and operation by the driver, that in the case at bar whatever was visible to Mrs. Smith was also visible to her husband, and that when he started to pass and the danger became apparent shd did all that could be expected when she cried out the warning to 'Look out.'
The rule is elementary that if there is any evidence of contributory negligence on the part of the plaintiff a question of fact is presented which must be left to the jury for determination. Whenever a question remains whether either party had performed his legal duty, or has observed that degree of care required of him by law, and its determination involves a consideration and weighing of the evidence, the question must be submitted as one of fact. But it is also the law that when all the evidence is considered in its aspect most favorable to the other p...
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Pedrick v. Peoria & E. R. Co.
...... However, this question is no longer debatable in this State, for Carter v. Winter, 32 Ill.2d 275, 282, 204 N.E.2d 755; Smith v. Bishop, 32 Ill.2d 380, 383--384, 205 N.E.2d 461; Zank v. Chicago, Rock Island and Pacific Railroad Co., 17 Ill.2d 473, 477, 161 N.E.2d 848 and ......
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Graves v. North Shore Gas Co.
...... Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 148, 324 N.E.2d 417. . Plaintiff's final argument that a directed verdict for her should have ... (Smith v. Bishop (1965), 32 Ill.2d 380, 383, 205 N.E.2d 461.) The same Pedrick standard is used to determine whether the issue of plaintiff's contributory negligence ......
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