Opinion
Opinion filed January 4, 1935. Rehearing denied February 25, 1935.
1. NEGLIGENCE — when conduct is per se negligence. Whether a given course of conduct amounts in law to negligence depends on its character and attending circumstances; if the acts or omissions complained of so contravene the promptings of ordinary caution that reasonable minds without doubt or hesitation would agree that no careful person would be guilty thereof, then such conduct is per se negligence.
2. AUTOMOBILES — what is duty of driver as to lookout at street intersection. It is the duty of the operator of a motor vehicle approaching a street intersection to keep a lookout ahead of him and also to look for approaching vehicles on the intersecting street and, although the latter duty is particularly imperative with respect to the direction from which vehicles having the right of way over him would approach, full performance of his duty requires that he look in both directions; where his view along the intersecting street is in any way obstructed, he must be especially vigilant with respect to a lookout on such street and the duty of special vigilance also applies with respect to observation of the crossing itself where his view is obstructed by other vehicles, and under such circumstances the failure to look is negligence per se.
3. AUTOMOBILES — when driver is guilty of want of ordinary care in matter of lookout at street intersection. The dictates of common prudence require that a motor vehicle driver, approaching a street intersection, shall be observant to determine the presence of other vehicles at or near the intersection, and all reasonable minds will agree that a driver, approaching such an intersection, especially where it is known to him to be a busy corner, who fails to look as he approaches to ascertain whether there are other cars in proximity, is guilty of a want of ordinary care.
4. AUTOMOBILES — when driver of motor vehicle running into taxicab at street intersection cannot be heard to say he did not see cab. The driver of a motor vehicle, running into a taxicab making a "U" turn at a street intersection, cannot be heard to say that he did not see the cab in time to avoid the collision, when, if he had looked, he necessarily would have seen the cab in ample time to have stopped his own vehicle before the collision occurred.
5. AUTOMOBILES — when evidence shows driver failed to keep proper lookout as he approached street intersection. Evidence held to show that the driver of a motor vehicle, running into a taxicab which was engaged in making a "U" turn in a street intersection, failed to keep a proper lookout as he approached the intersection.
6. AUTOMOBILES — when driver's failure to keep proper lookout at street intersection is negligence as matter of law. Failure of the driver of a motor vehicle to keep a proper lookout for other vehicles as he approached a street intersection, held negligence as a matter of law.
7. AUTOMOBILES — when driver's failure to keep proper lookout at street intersection is one of proximate contributing causes of collision with taxicab. Failure of the driver of a motor vehicle to keep a proper lookout for other vehicles as he approached a street intersection, held at least one of the proximate contributing causes of his running into a taxicab which was engaged in making a "U" turn in the intersection at the time.
8. AUTOMOBILES — negligence of taxicab driver not imputed to passenger for hire. Negligence on the part of the driver of a taxicab is not imputed to the cab's passenger for hire.
9. AUTOMOBILES — when third person's concurrent negligence is not defense in accident case. Even though it was the combined negligence of the defendant in an automobile accident case and of a third person which was the proximate cause of the accident, defendant still is liable for the resultant damage and the third person's concurrent negligence is not available to him as a defense.
Appeal by plaintiff from the Circuit Court of St. Clair county; the Hon. MAURICE V. JOYCE, Judge, presiding. Heard in this court at the October term, 1934. Reversed and remanded. Opinion filed January 4, 1935. Rehearing denied February 25, 1935.
WHEELER, OEHMKE DUNHAM, of East St. Louis, for appellant.
PRESTON K. JOHNSON, of Belleville, for appellee.
On April 24, 1930, C. F. McLaughlin engaged a taxi at the public square in Belleville, to take him to the Oakland Foundry Company, located at the junction of Florida avenue and A street. The cab was owned and driven by Ed Bien. It proceeded easterly along A street, which, west of its intersection with Florida avenue, is 30 feet wide from curb to curb, while east of the avenue its corresponding width is 24 feet. At the time in question, which was about 11 o'clock in the forenoon of a bright, sunshiny day, there were parked on the south side of A street, and east of Florida avenue, several autos, which came close to the street intersection, while on the north side one or two cars were standing somewhat farther east.
The office of the Oakland Foundry Company is on the north side of A street, where it corners into Florida avenue. Bien testified that as he approached the intersection, he looked easterly and saw the car of appellee, driven by Ralph Thomas, coming westerly along A street, and 200 or 300 feet toward the far end of the block; that he slowed his car down and started to make a "U" turn, intending to discharge his passenger at the office of the foundry company on the northwest corner of the intersection; that to do so, he dipped to the south in Florida avenue, and that while so doing, his view to the east was obscured by the cars parked on the south side of A street and east of Florida avenue; that as soon as he swung northward, he again saw the car of appellee, which was about 75 or 100 feet east of the corner, and coming rapidly. Bien at the time was traveling about 5 or 10 miles an hour. The car of appellee struck the cab head-on, damaging it considerably. Bien further stated that after the accident Thomas said he was driving about 45 miles an hour, though the latter denies making such statement.
Mr. McLaughlin, the passenger, sustained head injuries as a result of the collision, from which he, two days later, died. Appellant, his employer, and appellee, were at the time operating under the Illinois Workmen's Compensation Act, Cahill's St. ch. 48, ¶ 201 et seq. Appellant negotiated a settlement with Susie G. McLaughlin, widow of the decedent, in the sum of $3,750, and became obligated to pay the medical and hospital services in the sum of $97.85, after which appellant, by virtue of the provisions of the Workmen's Compensation Act, sued appellee to recover such amounts. A verdict was returned for appellee, and judgment entered, from which appellant appeals, assigning as the sole ground for reversal that the verdict is contrary to the manifest weight of the evidence, and that the trial court should have awarded a new trial.
Thomas, the driver of appellee's car, testified that he was employed as a deliveryman for the latter, who conducted a grocery and market; that at the time in question he had completed his deliveries and started to return to the store; that he turned into A street several blocks east of Florida avenue, and proceeded westerly; that he was familiar with the locality, and knew that cars were usually parked about the intersection in question when the foundry was in operation.
He further testified that he was driving about 20 miles an hour; that he saw the cars parked east of the corner, on A street; that he did not see the taxi at any time when it was west of the intersection, and did not know of its presence or proximity until he was at the crossing and the taxi only 10 feet away, and in front of him; that it was then headed north; that he applied his brakes, but it was too late to avert the collision. He also admitted that from the time he first saw the cab he did not change his course, but drove straight into it. He did not testify that he, at any time, looked to see whether any cars were coming easterly along A street, or try to see whether any autos were traveling along Florida avenue.
Hugo Ehret stated that he saw appellee's car just previous to the accident, and that it was going 30 miles or more an hour. Wilbur Emge testified that he was driving west on A street, behind the car of appellee; that he was driving about 15 or 20 miles an hour, and that the car ahead of him made four blocks while he was traveling three.
Appellant contends that the evidence discloses that the conduct of appellee's driver, in approaching and entering the intersection, was such as to prove him guilty of a want of ordinary care, and that his acts conclusively establish his negligence, as shown by the testimony of both plaintiff and defendant. If the proof was of such degree, then defendant has been proven guilty of negligence as a matter of law.
Whether a given course of conduct amounts in law to negligence depends upon its character and attending circumstances. If the acts or the omissions complained of so contravene the promptings of ordinary caution that reasonable minds without doubt or hesitation would agree that no careful person would be guilty of the same, then such conduct is per se negligence. 45 Corpus Juris, p. 633, sec. 4.
A review of the evidence reveals that A street is a straight thoroughfare, both east and west of Florida avenue; that on the day in question the weather was clear and sunshiny, the hour of the accident being about 11 o'clock in the morning; that appellee's driver had an unobstructed view of A street for several blocks west of its intersection with Florida avenue; that cars parked on the south side of A street, right up to the corner of the avenue, somewhat obscured his view to the south, and that he did not see the taxicab until he was at the street intersection, and the cab only 10 feet distant and directly in front of him.
"It is the duty of the operator of a motor vehicle approaching a crossing or intersection to keep a lookout ahead of him, and also to look for approaching vehicles on the intersecting street or highway; and although the latter duty is particularly imperative with respect to the direction from which vehicles having the right of way over him would approach, full performance of the driver's duty requires that he shall look in both directions. Where the view of the driver along intersecting streets is in any way obstructed, he must be especially vigilant with respect to a lookout on such streets, and the duty of special vigilance also applies with respect to observation of the crossing itself where the driver's view is obstructed by other vehicles." 42 Corpus Juris, p. 962, sec. 691. Rupp v. Keebler, 175 Ill. App. 619; Haggerty v. Rain, 177 Wis. 374, 186 N.W. 1017; Geiger v. Sanitary Farm Dairies, 146 Minn. 235, 178 N.W. 501. And under such circumstances the failure to look is negligence per se. Kok v. Lattin, 261 Mich. 362, 246 N.W. 149; Stone v. Mullen, 257 Mass. 344, 153 N.E. 565; Haggerty v. Rain, supra; Marinkovich v. Tierney, 93 Mont. 72, 17 P.2d 93.
Aside from the legal force of the rule as stated in the foregoing authorities, the dictates of common prudence require that a motor vehicle driver, approaching a street intersection, shall be observant to determine the presence of other vehicles at or near to the intersection. All reasonable minds will agree that a driver thus approaching such an intersection, especially where it is known to him to be a busy corner, who fails to look as he approaches to ascertain whether there are other cars in proximity, is guilty of a want of ordinary care.
That appellee's driver failed to look as he came toward the crossing of A street and Florida avenue is manifest. He testifies he did not see the taxi until he was at or in the intersection, and that it was then straight ahead of him, and only 10 feet away. That he could have seen it in ample time to have stopped his car, and thus avoided the collision, had he been on the lookout for other vehicles, as the law required him, is obvious. He could not, under such circumstances, be heard to say that he did not see the cab, when, had he looked, he necessarily would have seen it. De Bow v. Cleveland, C., C. St. L. Ry. Co., 245 Ill. App. 158; Grinestaff v. New York Cent. R. R., 253 Ill. App. 589. The driver of appellee's car did not testify that he looked in any direction as he approached the crossing, and the proof thoroughly establishes that he did not do so. This failure to so look was negligence as a matter of law. Kok v. Lattin, supra, and Haggerty v. Rain, supra.
That the failure of the driver to thus keep a proper lookout, which would have enabled him to see the taxicab in time to have stopped his car or slacken its speed, and thus avoid the collision, was at least one of the proximate contributing causes of the accident.
Whether the driver of the taxi was also negligent is not controlling in the case. Mr. McLaughlin was a passenger for hire in the cab, and any negligence of the driver could not be imputed to him. Flynn v. Chicago City Ry. Co., 250 Ill. 460. Moreover, even though the taxi driver was guilty of a want of care, and his negligence, combined with that of appellee's driver, was the proximate cause of the accident, the appellee would still be liable to respond in damages therefor, and could not urge the concurrent negligence of the taxi driver as a defense. Chicago Alton R. Co. v. Harrington, 192 Ill. 9; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Thompson on Negligence, sec. 75.
We think, upon this record, it unmistakably appears that the driver of appellee's car was guilty of negligence which was an efficient cause of the accident and consequent injury. The verdict, finding appellee not guilty of negligence, was manifestly against the weight of the evidence, and the court should have sustained the motion for a new trial.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.