dissenting:
I concur in part I of the majority opinion. An appellant must preserve a record sufficient to show not only that there was error, but also that the appellant made timely objection to the error. (Greenlee v. John G. Shedd Aquarium (1961), 31 Ill. App. 2d 402, 411-12, 176 N.E.2d 684.) Plaintiff here has not preserved a sufficient record. I dissent from part II of the majority opinion.
“Whether conduct was negligent or contributorily negligent is rarely decided as a matter of law. The determination of what conduct is negligent or contributorily negligent is a composite of the experiences of average people, and is left to the jury for evaluation.” (Johnson v. Colley (1986), 111 Ill. 2d 468, 475, 490 N.E.2d 685.) The jurors in this case heard all the evidence, weighed the credibility of the witnesses, and in light of their composite experiences, found that plaintiff acted negligently. The majority holds that the trial court erred by failing to direct a contrary verdict.
“[T]he circuit court may properly direct a verdict only when the evidence presents no factual question for the consideration of the jury.” (Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 646, 561 N.E.2d 264.) The evidence here presents a factual question of whether plaintiff acted negligently. Viewing the evidence in the light most favorable to defendant, as we must on plaintiff’s motion for directed verdict (Johnson, 111 Ill. 2d at 474), the record shows that defendant lost control of her car when it hit a pothole and the right tire went onto the east shoulder. Plaintiff saw, from more than 200 feet away, that defendant was losing control of her car, and he knew he needed to be ready to avoid a possible collision. When defendant tried to bring the right side of her car back onto the roadway, the car fishtailed, turning perpendicular to the road, and then went quickly straight across the road before defendant brought the car to a stop on the west shoulder with the back of her car protruding slightly into the roadway. Two cars went around the back of defendant’s car before plaintiff rammed into the side of defendant’s stationary car. As the majority admits, the point of impact was off the roadway.
Since defendant testified that her car fishtailed to be perpendicular to the roadway while it was on the east shoulder, if the jurors believed her, they would have found that plaintiff never faced the “on-coming headlights in [his] own lane” which the majority posits. (See 254 Ill. App. 3d at 709.) Defendant’s car never hurtled toward plaintiff; instead, it crossed the roadway ahead of him, with its side facing plaintiff. Plaintiff had several seconds to react, as he foresaw the possible problem from at least 200 feet away. A jury of 12 persons, probably familiar with driving, found that plaintiff’s course of action, turning off the roadway and turning towards the same direction as defendant’s car, thereby running directly into defendant’s car, was not reasonable and plaintiff was guilty of contributory negligence. The majority dismisses the jury’s assessment because the majority believes plaintiff’s course of action was reasonable, although not the best available.
In Chevrie v. Gruesen (1991), 208 Ill. App. 3d 881, 567 N.E.2d 629, the plaintiff was driving east when a car struck the back of his car and sent the plaintiff’s car across the center line, into oncoming traffic, moving on a perpendicular to the flow of traffic. Two cars passed without incident, but the third vehicle, which the defendant drove, ran into the side of the plaintiff’s car in the defendant’s lane. The trial court granted summary judgment for defendant and the appellate court reversed, holding:
“The driver of a vehicle has the duty to maintain a proper lookout for other cars traveling on the road. [Citation.] This duty applies even though the other car is traveling on the wrong side of the road. [Citation.] So, too, a driver has the duty to reduce speed to avoid collisions.” (Chevrie, 208 Ill. App. 3d at 884.)
The court rejected the defendant’s argument that the collision was unavoidable:
“Two drivers with less time and distance to either observe plaintiff’s car or react to plaintiff’s sudden appearance in their right-of-way were able to take effective evasive measures. *** [T]here is a clear factual question of whether defendant could have avoided the collision with plaintiff’s car ***.” Chevrie, 208 Ill. App. 3d at 886.
Applying similar reasoning, the trial court here rejected plaintiff’s motion for directed verdict:
“The defendant testified without rebuttal that while her car was in the ditch she observed for certain one, and she thought perhaps even two, vehicles that passed behind her vehicle before her vehicle was struck by the plaintiff’s car ***.
That evidence in and of itself, it seems to me, is sufficient to overcome a motion for a directed finding *** and make it a jury question.”
I believe the trial court correctly applied the appropriate legal principles restated in Johnson and Chevrie. (See also Pizano v. Trejo (1971), 2 Ill. App. 3d 944, 947-48, 274 N.E.2d 861.) The issue of whether plaintiff met the standard of acting reasonably under the circumstances presented a question of fact for the jury to decide. For these reasons and the reasons stated in my dissent in Williams, the court should seize this opportunity to overrule Williams. I would affirm the judgment of the trial court.