dissenting.
I regret that I cannot agree that the only conclusion to be drawn in this case is that plaintiff’s intestate was guilty of contributory negligence as a matter of law, or that the judgment should be reversed.
Under the circumstances evident here, the conduct of intestate, Pennington, is not comparable with that of the defendant in the Hering case. It is true that the defendant in that case approached a preferred highway from a gravel road and here intestate probably entered the highway from a blacktop paving, but there the similarity ceases. In that case the collision occurred in daylight, the defendant testified that he saw plaintiff’s ear approaching the intersection at an estimated distance of 1,300 feet, and that he proceeded across the intersection without again looking in the direction of plaintiff’s car to ascertain if it was safe to proceed and without heeding the warning of plaintiff’s horn. Upon this evidence the Court concluded that the wilful and wanton count could have been submitted to the jury. Here the collision occurred in the nighttime, defendant sounded no horn, and there is no evidence showing that plaintiff’s intestate knew or should have known of the approach of defendant’s car before the impact.
In addition to the facts set forth in the opinion, the abstract shows that as defendant was proceeding toward the Main Street intersection he was going about 65 miles an hour; both the defendant and Michael Fitzner passed cars stopped or waiting for the light to change at that intersection; Fitzner proceeded east on the inner lane at a speed of 35 to 40 miles an hour; and when defendant first saw the truck driven by Pennington, defendant was traveling in the outer lane at approximately 55 miles an hour. On the previous day of the trial when he was called under section 60, in addition to his testimony that he didn’t see the truck until after the accident had been fully accomplished, defendant also stated that he didn’t know how fast his car was going at the time of the collision, and that after the accident his car slid to a stop 25 or 30 feet east of the truck.
At a speed of 55 miles an hour, defendant was traveling about 80 feet a second. He said that the distance from the top of the hill to the place of the accident was about 400 feet. Accordingly, he would have covered the portion of the highway visible from the point where Pennington entered the highway in about five seconds. However, considering the evidence and its intendments most favorable to plaintiff’s cause of action, the jury could have concluded that defendant was driving his car much faster than 55 miles an hour. Before he reached Main Street defendant’s speed was 65 miles an hour. Fitzner was traveling on the inner lane at 35 to 40 miles an hour, so defendant must have followed Fitzner through the traffic at the Main Street intersection, pulled into the outer lane, and covered the third of a mile from Main Street to the intersection where the collision occurred, while Fitzner was traveling about half that distance. Defendant applied his brakes for almost 150 feet and the pavement was dry, yet the impact of his car drove the rear half of the truck completely off the highway and turned the truck around so that it was facing northwest, and the momentum was so great that defendant’s car slid 30 feet beyond the truck. In view of defendant’s original statement that he did not know his speed and did not see the truck, and his overnight change to testimony that he was traveling 55 miles an hour and saw the truck when he was about 150 feet west of the point of impact, and considering defendant’s inability to stop or swerve his car in 150 feet, the very slow speed of the truck, and the force of the impact, the jury was fully warranted in concluding that defendant was traveling much faster than 55 miles an hour, and that the time afforded intestate to see defendant’s car after it came over the hill was considerably less than five seconds.
According to the photographs in the additional Abstract, the truck was a large vehicle with the upper half painted white. Fitzner saw the truck 450 to 600 feet away, and at the speed he was traveling, he had no difficulty in avoiding a collision. Defendant either didn’t see the truck or first saw it at 150 feet from the point of impact. He said his lights cast a beam of about 300 feet, but his failure to see the truck, as did Fitzner, together with the fact that none of defendant’s lights was on after the accident, and the significant fact that defendant’s car apparently wasn’t visible to Fitzner until defendant “was just about on top of the truck,” afforded a reasonable basis upon which the jury might have properly concluded that defendant’s lights were not on as he drove over the hill and toward the scene of the collision, and that by driving without lights, defendant entirely eliminated the only means by which the approach of his car might have been observed by Pennington.
Plaintiff’s intestate moved across the west-bound lanes where the traffic was heavy, very slow, — indicating his care and caution on entering and proceeding in the intersection. He had no affirmative duty to keep out of defendant’s path. The right of way and stop sign statutes gave defendant no absolute right of way over intestate without regard to circumstances, the distance their vehicles were from the intersection, or the speed at which the vehicles were traveling. Anderson v. Middleton, 350 Ill. App. 59, 63; Bessette v. Loevy, 11 Ill.App.2d 482, 486. According to defendant’s revised testimony, the truck was at least halfway into the intersection when defendant was 150 feet away. At this point defendant was not approaching so closely as to constitute an immediate hazard, if defendant had been traveling at a reasonable speed and with proper lights. Photo exhibit 2 shows that defendant’s car struck the rear two or three feet of the truck, so intestate must have been nearly through the intersection when defendant entered. Although Fitzner said the truck was moving southwest, defendant who was ahead of Fitzner and closer to the truck, said it was proceeding south. It was for the jury to say whether the truck was headed south or southwest, and to determine whether intestate intended to angle across the parking lot in front of Ki’s Restaurant towards Goodrich Avenue or to turn east on Route 64. If intestate was in the process of turning east on Route 64, defendant’s view of the truck directly ahead, was much better than Pennington’s view of defendant’s car as it approached towards intestate’s right or rear. In either event, I think there was some evidence upon which the jury could have concluded that Pennington had the right of way, and that it was defendant’s duty to yield the way to intestate.
The question of intestate’s contributory negligence was pre-eminently a fact for the consideration of a jury. Blumb v. Getz, 366 Ill. 273, 277. The question of due care on the part of the plaintiff’s intestate is always a question of fact to be submitted to a jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on the part of the deceased. Thomas v. Buchanan, 357 Ill. 270, 278. The exercise of due care need not be established by direct and positive testimony but may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision. Ruspantini v. Steffek, 414. Ill. 70, 74; Thomas v. Smith, 11 Ill.App.2d 310, 316; Campbell v. Ragel, 7 Ill.App.2d 301, 304. Due care becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds must reach the conclusion that there was contributory negligence. McManaman v. Johns-Manville Products Corp., 400 Ill. 423, 430; Ziraldo v. W. J. Lynch Co., 365 Ill. 197, 199.
In Tucker v. New York, Chicago & St. Louis it. Co., 147 N.E.2d 376, cited in the opinion, defendant’s 48-car freight train ran into Tucker’s truck at 8:00 A. M., when the visibility was about two miles. The Court found that Tucker had a clear and unobstructed view of any approaching train for one fourth of a mile from the crossing, and concluded that there was no evidence that would convince a reasonable mind that he looked but did not see the train, and that he was guilty of contributory negligence as a matter of law. A person about to cross a railroad track ought to anticipate the movement of trains which cannot be stopped in a short distance or swerve from the railway to avoid a collision. I cannot agree that the respective duties and rights of way of Pennington and the defendant at the highway intersection here are comparable with those of Tucker and the defendant railroad at the crossing involved in the case cited.
In my opinion the Hering and Tucker cases are not applicable to the instant case; there is evidence in the record upon which the jury could have found that Pennington was in the exercise of due care and that defendant’s speed or failure to keep a proper lookout was the proximate cause of intestate’s death; there are no errors in the record requiring a reversal or a new trial; and the verdict and judgment should be affirmed. Therefore, I respectfully dissent.