dissenting:
William Monken, late at night on the evening of November 16, 1971, was driving westerly on State Route 104 east of Jacksonville, Illinois. As he approached a stop sign, he reduced his speed from 50-55 miles per hour to 20-25 miles per hour. Then, while still about 100 feet from the stop sign, he veered to the left, hit the guardrail on the left, went over the guardrail and rolled down a grade. He was killed.
A close scrutiny of the record reveals no discernible reason for the accident. A reading of the majority opinion likewise sheds no light on this proposition. What is clear, however, is that the decedent’s children obtained a $400,000 verdict against a blameless defendant and that the majority of this court wishes to affirm the verdict.
Sympathy and compassion are noble qualities. Without such feelings, life would be cruel, hard and unbearable. The loss of William Monken’s life on the evening in question was tragic. Anyone knowing of this situation could not help but feel sorry for the surviving children. Certainly, the majority of this court is to be commended for that caring concern.
What is not commendable, however, is the majority’s willingness to hang a $400,000 verdict on a party who had no responsibility for this accident, the Caldwell Engineering Company.
This lawsuit is grounded in the construction injuries act. In broad general terms, that statute imposes liability on road contractors during road construction in favor of the general public. The act requires contractors to adhere to certain safety standards as the posting of warning signs, etc. In the case at hand, defendant was indeed performing road construction on an intersecting highway, U.S. 36-54, at some distance east of the stop sign and intersection in question. They were performing no work on State Route 104 where the accident occurred, however. Thus, the statute had no application to this case. The construction injuries act applies only to parties traveling on a road under construction.
Because of the road construction on U.S. 36-54, however, traffic on State Route 104 was diverted at a point past the stop sign. It is important to note at this point that a mere road diversion does not constitute construction. Moreover, the accident took place at a point 100 feet before defendant even reached the stop sign. And it was beyond the stop sign where State Route 104 was diverted. Plaintiffs’ decedent inexplicably ran off the road to his left approximately 100 feet before even reaching the stop sign.
Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, is pertinent to the instant case. In Tylitzki, the plaintiff was traveling on Roselle Road approaching an intersection with Flagstaff Road. Roselle Road was not under construction. Flagstaff Road, however, was under construction approximately 80 feet from its intersection with Roselle Road. A collision occurred on Roselle Road between the plaintiff and a truck maneuvering to the construction site on Flagstaff Road. The court in Tylitzki concluded the plaintiff was not among the class of persons protected by the construction injuries act since the plaintiff was not traveling on the road under construction at the time of the accident.
The majority makes note of the fact that defendant had done some construction on State Route 104. Indeed they had. And they had finished their work a full 2¡í months before the accident in question. That work was remote in time. The work on U.S. 36-54 was remote in place. Neither brought the construction injuries act into play in this case. End of lawsuit.
If, however, we assume for purposes of argument that the construction injuries act applies, even then, the plaintiffs cannot recover. For there is not one iota of evidence in the record that suggests that any abjured standard of the statute was the proximate cause of the accident.
The advance warning sign provision of the construction injuries act required three warning signs be set out at intervals of 500,1000, and 1500 feet prior to the point of restriction. On the evening of the accident, 1100 feet from the intersection was a “stop ahead” sign. Nine hundred feet from the intersection was a “center curb ahead” sign. Seven hundred feet from the intersection was a sign which stated “JCT 36 and JCT 54.” At the intersection itself were two stop signs. At least one had a flashing red light. Jo Ann Monken, decedent’s divorced ex-wife, who was a passenger in the car and the only eyewitness, saw all these warnings along the highway with the exception of the stop sign at the intersection at which they never arrived. It is evident the decedent saw the same warnings along the road, as Mrs. Monken testified the decedent slowed down from 55 miles per hour to 20-25 miles per hour just before the accident. It is not clear how the presence of the advance construction signs would have caused the decedent to approach the intersection with more caution. Had he crashed through the intersection and detour barrier, it might be argued that the absence of the advance warning signs was a proximate cause of the accident. But he did not do that. Mr. Monken’s car left the road 100 feet before the intersection. Something caused him to go off the road and lose control of his car. It wasn’t because he didn’t have adequate warning of the situation ahead. He had warning of the stop at the intersection. He heeded it. He slowed down in preparation of the stop ahead. Whether he was warned of a detour at 1500 feet, under the circumstances, was immaterial because that detour started only after he would have come to a stop at the intersection. And, it is uncontroverted that Mr. Monken had adequate advance warning of the stop at the intersection.
The majority admits they cannot know what specifically happened on the night of the accident. They concluded, however, that Mr. Monken “must have been surprised by the situation he encountered on the incline approach to the intersection.” Then, they speculate about what must have occurred and that advance warning signs “may have” made Mr. Monken approach the intersection more cautiously. More cautiously? Mrs. Mon-ken testified he had slowed the car to approximately 20 miles per hour just before he ran off the road, and this was still 100 feet before the intersection.
We instruct our jurors to determine the facts solely from evidence produced in open court. They are further instructed their verdict must be based on evidence and not upon sympathy or speculation. (Illinois Pattern Jury Instructions, Civil, No. 1.01 (2d ed. 1971).) Yet the majority reaches their conclusion by just such proscribed processes.
Thus, this case should be reversed for the dual reasons that the construction injuries act has no application to the case at hand. And even if the act should erroneously be held to be applicable, the evidence does not indicate that any violation of the act was or could have been a proximate cause of the accident.
Accordingly, I dissent.