Tabor v. Tazewell Service Co.

• Decision Date: 25 September 1958
• Docket Number: Gen. No. 10185
• Citation: 153 N.E.2d 98,18 Ill.App.2d 593
• Parties: Elmer TABOR, Plaintiff-Appellant, v. TAZEWELL SERVICE COMPANY, a corporation, and Richard Hild, Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 98

153 N.E.2d 98

18 Ill.App.2d 593

Elmer TABOR, Plaintiff-Appellant, v. TAZEWELL SERVICE COMPANY, a corporation, and Richard Hild,

Defendants- Appellees.

Gen. No. 10185.

Appellate Court of Illinois, Third District.

Sept. 25, 1958.

Mathis, Sloan & Littler, Peoria, for appellant.

Davis, Morgan & Witherell, Peoria, for appellees.

CARROLL, Justice.

Plaintiff appeals from a judgment in favor of defendants entered by the Circuit Court of Tazewell County upon a jury verdict of not guilty.

The action was brought to recover for personal injuries sustained by plaintiff in an accident alleged to have been caused by the negligence of defendants in the operation of a truck.

Plaintiff contends the judgment should be reversed, because, as a matter of law, he was in the exercise of due care and defendants were guilty of negligence; that the verdict is against the manifest weight of the evidence; and that the Court erred in instructing the jury.

Facts which are not in dispute are that the accident in question occurred near Morton, Illinois, at about 11 o'clock a. m. on November 20, 1952 on U.S. Highway 150 opposite a driveway or entrance leading into a farm referred to in the record as the Chris Bear Farm. At that point the 2-lane highway with blacktop surface runs straight for a considerable distance. Plaintiff had driven over it many times prior to the occurrence and knew of the Bear Farm driveway. As he drove East he overtook a truck owned and driven by defendant Richard Hild, who was employed by his codefendant as a salesman and was then driving from farm to farm soliciting orders for farm supplies. The truck was of 2-ton capacity with a van type box and was painted white. Hild entered the highway from the Arch Knapp Farm about 1/2 mile West of the Bear driveway and proceeded East. Plaintiff saw the truck as it turned onto the highway and thought it was a milk truck picking up milk from the farms. The briefs indicate some dispute as to when plaintiff first saw the truck. However, plaintiff testified on cross-examination that he saw the truck three miles East of Morton when it turned into the road ahead of him. Driving at 50 miles per hour, he overtook and attempted to pass the truck. As he did so, the truck started to make a left turn into the Bear driveway and the two vehicles collided. Photographs in evidence show the front of plaintiff's car came into contact with the middle left side of the truck. Plaintiff's version of the accident is that as he attempted to pass the truck at a speed of about 50 miles per hour, he pulled his car over into the North or left traffic lane and when the front of his car was past the back end of the truck, the latter started to turn into the driveway; that he immediately put on his brakes and that he did not see any signals and that the front end of the car contacted the truck between its cab and body. Plaintiff's car made skid marks estimated by witnesses at from 66 to 100 feet in length. The only other occurrence witness was the defendant Hild who testified that after he came on to Highway 150 he was driving on the South side of the pavement at about 30 to 35 miles per hour; that he started to decrease his speed 200 to 250 feet from the Bear Farm; that when he was 75 feet from the Bear driveway he looked into the mirror and did not see any vehicles; that there was nothing to obstruct his view of the rear; that he again looked for traffic from the rear when he was 25 feet West of the driveway; that he had then reduced his speed to 10 miles per hour which was done by using the brakes which actuated the stoplight on the rear of the truck; that the truck was not equipped with any device to show a directional turn signal; that he signaled his intention to turn when 25 feet West of the driveway by extending all of his arm from the shoulder out beyond the edge of the cab of the truck; that his hand then extended 4"'' beyond the outer edge of the truck box; that he started to make his turn when 20 feet West of the driveway and that the first he knew of the presence of plaintiff's car was when he heard the squealing of brakes.

The basis of plaintiff's contention that defendant Hild was guilty of negligence as a matter of law is asserted to be the failure of the latter to give a signal of his intention to turn 100 feet or more from the place where he attempted to turn. As to the element of plaintiff's due care, it is contended that in overtaking the truck, he had the right to assume that he could pass the same safely and that Hild would not turn left without giving the prescribed statutory signal.

Our courts have repeatedly stated that negligence is primarily a question of fact to be considered and determined by the jury. It becomes a question of law only where the evidence bearing upon that issue is such that all reasonable men would agree in their deductions from it. If from the facts and circumstances shown by the evidence, it appears that reasonable men of fair understanding might not agree in their conclusions, then a jury question is presented. Leahy v. Morris, 289 Ill.App. 99, 6 N.E.2d 914; Partridge v. Enterprise Transfer Co., 307 Ill.App. 386, 30 N.E.2d 947. Likewise, the issue in a particular case as to whether the plaintiff's injury resulted from his own negligence is ordinairly a fact question for the jury.

Plaintiff takes the position that in failing to signal his intention to turn not less than 100 feet from the driveway, Hild was negligent as a matter of law, regardless of other facts and circumstances shown by the evidence and that his conduct in such respect absolved plaintiff from any duty of exercising due care for his safety. It is the settled law in this state that a traffic law violation is not negligence per se. Burke v. Zwick, 299 Ill.App. 558, 20 N.E.2d 912; Smith v. Ohio Oil Co., 10 Ill.App.2d 67, 134 N.E.2d 526, 58 A.L.R.2d 680; Miller v. Burch, 254 Ill.App. 387.

It is also the law that a plaintiff may not rely upon the assumption that another person will obey the law as an excuse for failure to exercise due care. Thomas v. Buchanan, 272 Ill.App. 308; Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 97 N.E. 233.

The burden of proving that he was in the exercise of due care at the...