Naslund v. Watts

224 N.E.2d 474, 80 Ill. App. 2d 464, 1967 Ill. App. LEXIS 882
CourtAppellate Court of Illinois
DecidedMarch 13, 1967
DocketGen. 66-43
StatusPublished
Cited by17 cases

This text of 224 N.E.2d 474 (Naslund v. Watts) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Naslund v. Watts, 224 N.E.2d 474, 80 Ill. App. 2d 464, 1967 Ill. App. LEXIS 882 (Ill. Ct. App. 1967).

Opinion

CORYN, J.

This is an appeal by all of the defendants from a. judgment in the amount of $15,000 entered against them upon a verdict in a suit for wrongful death under Ill Rev Stats, c 70, § 1, and for funeral expenses under the Family Expense Statute, Ill Rev Stats, c 68, § 15. The controversy arises from a motor vehicle collision which occurred at approximately 9:30 p. m., July 15, 1963, on U. S. Highway 34 in Knox County, north of Galesburg. A dump truck, owned and operated by defendant, Robert W. Watts, collided with an ambulance owned by Haskell D. Gill and Donald C. Schuster, d/b/a Johnson-GillSchuster Funeral Home, which was being driven by defendant, Albert M. Raisback. Mary C. Naslund, the decedent, with two of her daughters who were attending her, was riding as a passenger for hire in the ambulance, and she and her daughter, Bertha Pierson, both died as a result of the injuries sustained in this collision. Defendants, Haskell D. Gill, Donald C. Schuster, and Albert M. Raisback are prosecuting their appeals jointly, and will hereinafter be referred to as “Funeral Home.”

All of the defendants argue that the verdict is grossly excessive. In addition, the Funeral Home argues that the evidence shows, as a matter of law, that it was not guilty of any negligence which proximately caused the occurrence, but that said occurrence was due solely to the negligence of defendant Watts. Watts argues that there is no evidence that he was guilty of any of the negligent acts charged in the complaint, and that the verdict against him is contrary to the manifest weight of the evidence, and the law. Watts also argues that the trial court erred in giving plaintiff’s instruction No. 11 and Funeral Home’s instruction No. 3. Funeral Home argues that the court erred in refusing to give its instruction No. 2.

On the evening in question, the family of decedent called the Funeral Home at Galva, requesting ambulance service for the purpose of transporting Mrs. Naslund from her farm home near Williamsfield to a hospital in Galesburg. It was not an emergency call. Defendant Raisback, an employee of the Funeral Home, drove the ambulance, and Howard Cubbon, also an employee of the Funeral Home, rode along as an attendant. The ambulance arrived at the Naslund home shortly after 9 p. m., whereupon Mrs. Naslund was placed on a cot and put in the ambulance. Bernice Pennington and Bertha Pier-son, daughters of decedent, rode in the ambulance, Mrs. Pierson riding in the front seat with the driver, and Mrs. Pennington riding in the back seat with the attendant and her mother.

U. S. Highway 34, north of Galesburg, is a two-lane hard surfaced highway running generally in a northerly and southerly direction. It was, at the time of the collision, a clear night, and the pavement was dry. Prior to the accident the ambulance was traveling southbound on Highway 34. Watts lived some four to five hundred feet east of Highway 34, and from his home there was an east-west private road running out to and intersecting with Highway 34. Watts testified that on the evening in question he drove his dump truck on the private road westerly from his home to a stop at the easterly side of Highway 34 where he waited for a number of vehicles to pass, and then turned left onto the highway and proceeded in a southerly direction. Watts stated that before he turned onto the public road, he looked to his right and saw some red lights about one-half mile to the north of him. The ambulance, at this time, was approaching from the north, and Raisback, the driver, stated that he had the headlights and the red emergency lights on, and that he was traveling approximately sixty miles per hour. He claims that he first saw the Watts’ truck when he was approximately 400 feet north of it, and that at that time the Watts’ truck was stopped on the east side of, and was perpendicular with, Highway 34. Raisback continued south at approximately sixty miles per hour in the southbound lane of traffic. Immediately prior to the impact, he applied his brakes, but was unable to avoid the accident. The right front fender of the ambulance collided with the left rear corner of the truck. Raisback was unable to avoid the collision by pulling into the northbound lane of traffic because another vehicle, traveling northerly, was approaching him in that lane. After the impact the ambulance came to rest in the northbound traffic lane, headed in a southerly direction, and approximately seventy-five feet south of the point of impact. The Watts’ truck came to rest on the right shoulder of the highway a short distance south of the point of impact, and was upside down facing in a northerly direction. A state trooper testified that the point of impact was eighty-eight feet south of the point where the Watts’ driveway intersected Highway 34.

All of the' defendants admit that the plaintiff is entitled to recover in this case, but the Funeral Home and the defendant Watts each argue that he or it was free from negligence, and that the actions of the other constituted the negligence which proximately caused this collision. The trial court, without objections from any of the defendants, instructed the jury, “[T]hat as a matter of law neither the decedent, Mary Cecil Naslund, nor any of her next of kin were guilty of any contributory negligence with respect to the occurrence in question.” The jury, then, had only two issues to decide: first, should there be any joint or separate liability imposed upon either Watts or the Funeral Home, and second, what was the extent of the damages to plaintiff.

A negligent act or omission may be a proximate cause of injury where it concurs with other causes acting at the same time which, in combination with it, result in the injury. Kinsch v. DiVito Const. Co., Inc., 54 Ill App2d 149, 203 NE2d 621; Bernard v. Elgin, J. & E. Ry. Co., 34 Ill App2d 466, 181 NE2d 613. Where injury or damage is caused by the concurrent negligence of two persons and the accident would not have occurred without the negligence of both, the negligence of each is the proximate cause of the injury or damage. American Nat. Bank & Trust Co. v. Peoples Gas Light & Coke Co., 42 Ill App2d 163, 191 NE2d 628. In such instances one guilty of negligence cannot avoid responsibility therefor merely because another person also is guilty of negligence contributing to the same injury or damage, notwithstanding the injury or damage would not have occurred but for the negligence of the other person. Springfield Consol. Ry. Co. v. Puntenney, 101 Ill App 95. The issue of whether separate acts of negligence concurred as a proximate cause of injury is for the determination of the jury. We think the record here supports the jury’s conclusion that the conduct of both Watts and the Funeral Home constituted concurring acts of negligence which proximately caused the death of Mrs. Naslund. In our opinion it could reasonably be inferred by the jury from the evidence that Watts ignored the approaching ambulance when proceeding onto the highway, and that the ambulance driver, who was not on an emergency run, failed to keep a proper lookout and attempted to pass Watts when it was not safe to do so, and that these concurring acts of negligence were the proximate cause of the collision.

Watts argues that it was error for the trial court to give plaintiff’s instruction No. 11, which is IPI 34.05, and which is designed to be used in wrongful death cases where mortality tables have been admitted in evidence, as they were in this case.

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Bluebook (online)
224 N.E.2d 474, 80 Ill. App. 2d 464, 1967 Ill. App. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naslund-v-watts-illappct-1967.