dissenting:
The question, as I see it, is not whether there was evidence tending to show negligence on the part of plaintiff, but, rather, whether there was evidence tending to show the exercise of ordinary care on her part. A failure of proof on the issue should properly work against plaintiff, and not against defendant.
The fact that plaintiff was traveling on a preferential highway did not give her an absolute right-of-way. Pennington v. McLean, 16 Ill2d 577, 583, 584, 158 NE2d 624. As was well stated in Perno v. Brown,* 14 Ill App2d 507, 511, 145 NE2d 91:
[N]o reasonably prudent person, approaching an. intersection from the right, proceeds upon the conclusive presumption that the driver approaching from the left will make no error in weighing the relative distances and speeds, but such a person must keep a lookout for traffic approaching from the direction over which he has the right-of-way and, if he fails to do so, he is not as a matter of law in the exercise of reasonable care for his own safety.
The majority opinion points out that plaintiff passed the previous “T” intersection with care, slowing down and looking for cars approaching from the intersecting street on her right. It also mentions that she looked for children and saw a cattle truck coming from the opposite direction. None of these acts have any hearing whatsoever upon the issue now presented, as they do not satisfy the requirement that she look in the only direction from which a vehicle might be entering the “T” intersection in question — the direction from which defendant’s car was, in fact, approaching.
It is true, of course, that plaintiff testified that she did look to her left and that she “saw no vehicle of any kind.” She then proceeded on collision course without turning to right or left, without accelerating or slowing down, maintaining a steady 20 miles per hour, without looking again toward the intersecting road until “the accident happened.” Only then did she apply her brake, and was unable to stop before going over the curb into a tree or pole 60 to 75 feet away.
From these facts there are only two possible conclusions either one of which would require affirmance of the trial court in this case: (1) Plaintiff did not, in fact, look in the direction of defendant’s car, or (2) she looked with the kind of “unseeing eye” which has been repeatedly and consistently (until now) held to be insufficient to meet the standard of ordinary care.
As to the first alternative situation, this court recently affirmed a summary judgment for defendant as not presenting a triable issue of fact. Tuohey v. Yellow Cab Co., 33 Ill App2d 180, 180 NE2d 691. We said in that opinion at page 185:
It is undisputed that plaintiff did not slow down as he approached the intersection in question nor make any attempt to apply the brakes. In the absence of anything in the record to show that plaintiff looked for approaching vehicles on Minerva Avenue as he approached or entered the intersection, we conclude that plaintiff failed to exercise due care and was guilty of contributory negligence as a matter of law.
As to tbe second alternative situation tbe Supreme Court, in affirming a directed verdict for defendant in Greenwald v. Baltimore & O. R. Co., 332 Ill 627, said at page 632, 164 NE 142:
Tbe law will not tolerate tbe absurdity of allowing a person to testify that be looked but did not see tbe train wben tbe view was not obstructed, and where, if be bad properly exercised bis sight, be must have seen it.
Later, in like action, tbe same court, in a similar case disposed of plaintiff’s contention that be bad looked but bad not seen, by stating that tbe law considers such a contention “obnoxious.” Carrell v. New York Cent. R. Co., 384 Ill 599, 604, 52 NE2d 201.
Tbe opinion in Dee v. City of Peru, 343 Ill 36, 42, 174 NE 901, repeated tbe Greenwald language that tbe “law will not tolerate tbe absurdity,” etc.
In Briske v. Village of Burnham, 379 Ill 193, 200, 39 NE2d 976, tbe court said that “[t]he conclusion is inescapable” that tbe driver could have avoided tbe collision “bad be used bis powers of observation. Tbe law does not permit him to say that be did not see tbe obstruction wben, if be bad properly exercised bis faculty of sight be would have seen tbe barrier.”
Though tbe case is not in point on tbe facts, another Appellate Court, in Pantlen v. Gottschalk, 21 Ill App2d 163, 170, 157 NE2d 548, made this clear statement of the rule:
It is equally well established by tbe law in Illinois, that one cannot look with unseeing eye and not see tbe danger which be could have seen by tbe proper exercise of bis sight, or stated another way, one will be deemed to have observed that which would necessarily have been seen if he had looked, and will not be absolved of the charge of negligence in failing to look by testimony that he looked and did not see. (Citing six cases, including four not mentioned in this opinion.)
. New principles of law have produced so much strong language in their declaration and restatement. For indeed these are strong words: “The law will not tolerate,” “absurdity,” “obnoxious,” “inescapable conclusion.” I believe they indicate that the principle is considered to be an important one, and not to be ignored or abandoned by any lower court, such as ours. Yet I fear that is precisely what we have done.
The salient facts in the Ferno case are strikingly similar to those before us. Plaintiff was driving in the preferred street at an intersection. He looked to his right and saw a truck, but did not look to his left, the direction from which defendant’s car was moving. Plaintiff was at the center of the intersection “when all of a sudden he was hit.” Although defendant’s ear had traversed three lanes of the four-lane street, plaintiff did not see defendant’s car until the collision. Plaintiff’s car was struck on the left side and travelled about four ear lengths after impact. (In the case at bar plaintiff’s car continued 60 to 75 feet after impact and then hit a tree or pole.) Plaintiff did not decrease speed prior to the collision. The Appellate Court reversed a judgment in favor of plaintiff on the ground that the evidence failed to show that plaintiff had been in the exercise of reasonable care and had affirmatively shown plaintiff to have been guilty of negligence.