{ "id": 3116557, "name": "HELEN KENT, Plaintiff-Appellant, v. KNOX MOTOR SERVICE, INC., et al., Defendants-Appellees", "name_abbreviation": "Kent v. Knox Motor Service, Inc.", "decision_date": "1981-04-22", "docket_number": "No. 80-356", "first_page": "223", "last_page": "228", "citations": [ { "type": "official", "cite": "95 Ill. App. 3d 223" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "251 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 2d 255", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1591025 ], "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0255-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "392 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "186" } ], "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267273 ], "weight": 2, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0158-01" ] }, { "cite": "350 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "222" } ], "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5381629 ], "weight": 2, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0172-01" ] }, { "cite": "374 N.E.2d 858", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5628575 ], "pin_cites": [ { "page": "805" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0791-01" ] }, { "cite": "221 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. App. 2d 88", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2576974 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/76/0088-01" ] }, { "cite": "319 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5306824 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0101-01" ] }, { "cite": "382 N.E.2d 135", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 332", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328734 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0332-01" ] } ], "analysis": { "cardinality": 594, "char_count": 10883, "ocr_confidence": 0.914, "pagerank": { "raw": 1.6224748395548455e-07, "percentile": 0.6874589985748204 }, "sha256": "2aeddabb8f1a6dc0a24de69c3ec27f6dea27dda92b63690d6b35584e1cd4fbdf", "simhash": "1:a1f0b85e462d5db5", "word_count": 1808 }, "last_updated": "2023-07-14T16:14:33.414377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HELEN KENT, Plaintiff-Appellant, v. KNOX MOTOR SERVICE, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SCOTT\ndelivered the opinion of the court:\nThis appeal stems from an automobile accident which occurred on December 12, 1978, at approximately 2:50 p.m. on State Route 29 between the cities of Peoria and Sparland. At this time and at a location north of a railroad overpass a semi-trailer truck was stopped on the highway while waiting to make a left turn. The plaintiff, Helen Kent, brought her automobile to a stop behind the waiting semi-trailer truck.\nThe defendant Charles Fatheree, driving a semi-trailer truck for his employer, the defendant Knox Motor Service, Inc., was proceeding north (the same direction the plaintiff was traveling), exited the city of Chillicothe, guided his vehicle through two railroad overpasses, or underpasses, depending upon whether the same are used by the railway or by a motor vehicle traveling on the highway. Upon clearing the last underpass he met oncoming traffic and water on the highway. The defendant Fatheree reduced the speed of his vehicle, attempted evasive action to the extent of intentionally \u201cjackknifing\u201d the semi-trailer, but all to no avail in that the left rear drive tire of his rig struck the rear bumper of the plaintiff\u2019s automobile.\nThe record further discloses that at all times the defendant Fatheree was operating his vehicle within the speed limit and that prior to the collision no brake lights were showing on the plaintiff\u2019s vehicle and that the plaintiff\u2019s vehicle was so positioned as to block from the view of Fatheree any brake lights which might have been in operation on the semi-trailer stopped on the highway in front of the plaintiff.\nAfter trial by jury a verdict was returned for the defendant. The jury answered a special interrogatory of the defendant on the issue of contributory negligence by finding that the plaintiff was not guilty of contributory negligence.\nFurther facts and the rulings of the trial court will be set forth as they become pertinent to the determination of the issues in this appeal.\nDuring the course of the trial the plaintiff attempted to introduce testimony by an Officer Britton regarding an experiment which had been conducted by him to determine the extent of defendant Fatheree\u2019s visibility immediately prior to the collision. The trial court denied the admissibility of this evidence on the grounds that the experiment did not create conditions substantially similar to those which existed at the time of the collision. The plaintiff assigns as reversible error the trial court\u2019s ruling denying the admissibility of Officer Britton\u2019s testimony.\nAdmissibility of experimental evidence is a matter within the discretion of the court to decide in light of all facts and circumstances. (Terrell v. Lovelace (1978), 65 Ill. App. 3d 332, 382 N.E.2d 135; Schofield v. Crandall, Inc. (1974), 24 Ill. App. 3d 101, 319 N.E.2d 585.) The narrow issue to be determined is whether in the instant case the trial court abused its discretion by its ruling. In making this determination we direct our attention to and examine the testimony proffered to the trial court which related to the experiment conducted by Officer Britton.\nBritton, in an offer of proof, testified that in conducting his experiment he used a \u201cCMC Astro 95\u201d semi-tractor. The defendant Fatheree was driving a \u201cFord W 9000\u201d semi-tractor when the collision occurred. Upon being cross-examined, Britton acknowledged that he had never been in a \u201cFord W 9000\u201d semi-tractor and that he did not know the height difference between a \u201cFord W 9000\u201d semi-tractor and a \u201cGMC Astro 95\u201d semi-tractor. The defendant Fatheree, a professional truck driver with 27 years\u2019 experience, testified that he was familiar with both the \u201cFord W 9000\u201d and the \u201cCMC Astro 95\u201d semi-tractors and that the Astro model is substantially lower than the Ford semi-tractor.\nAs previously stated, the collision occurred close to 3 p.m. on December 12,1978. Britton conducted his test at approximately 5:30 p.m. in the month of April. This court can, as apparently the trial court did, take judicial notice that in the State of Illinois there is a substantial difference in the amount of light available in the month of April as compared to the month of December. We further note that prior to the accident in question heavy traffic was encountered and that water from melting snow was flowing across the highway.\nWhile in most instances it would be difficult if not impossible to conduct a test with conditions identical with those present at the time of an accident, it must be shown that the essential conditions were the same. (Mack v. Davis (1966), 76 Ill. App. 2d 88, 221 N.E.2d 121.) In the instant case the essential conditions, to wit, type of vehicle, light conditions, and conditions of the highway at the time of the test were not the same nor substantially the same as those present when the accident occurred. The case of Mack sets forth a higher standard than that set forth in Terrell and Schofield in that essential conditions must be the same, while in the latter cited cases the standard is that conditions or circumstances must be substantially the same. By either standard we cannot and do not fault the trial court\u2019s ruling in denying admissibility of Britton\u2019s testimony relating to the test he conducted. Essential elements or conditions at the scene of the test were not slightly different from those at the time of the accident, but on the contrary were substantially different and hence we find no abuse of discretion.\nPlaintiff next argues that jury instruction No. 24 tendered by her should not have been refused by the trial court. The instruction in question reads as follows:\n\u201cThe defendants are sued as principal and agent. The defendant, Knox Motor Service, Inc., is the principal and the defendant, Charles Father ee, is its agent. If you find the defendant, Charles Father ee, is liable, then you must find that the defendant, Knox Motor Service, Inc., is also liable. However, if you find Charles Fatheree is not liable, then you must find that Knox Motor Service, Inc. is not liable.\u201d\nThe record discloses that the trial court did accept and give two other instructions which properly covered the issue and subject matter covered in plaintiff\u2019s tendered instruction No. 24. The instructions given by the court were Illinois Pattern Jury Instructions, Civil. Where IPI instructions correctly and adequately charge the jury, the use of additional instructions is improper. (See Ill. Rev. Stat. 1979, ch. 110A, par. 239(a). See also Christopherson v. Hyster Co. (1978), 58 Ill. App. 3d 791, 805, 374 N.E.2d 858, 869, wherein the reviewing court stated: \u201cNo error is committed in refusing even instructions correctly stating the law where the instructions given do adequately instruct the jury.\u201d) No harm to the plaintiffs case resulted from the trial court\u2019s refusal to accept and give her tendered instruction No. 24.\nLastly, the plaintiff contends that the trial court erred in refusing to grant her motions for a directed verdict or judgment n.o.v. She asserts that based on the evidence the jury could only have found the defendant Fatheree guilty of negligence and therefore the trial court erred in denying her motions. The plaintiff cites the case of Glenn v. Mosley (1976), 39 Ill. App. 3d 172, 350 N.E.2d 219, for the proposition that a party who collides with a stopped vehicle is guilty of negligence as a matter of law. Plaintiff\u2019s reliance on the case of Glenn is misplacd. While the reviewing court did state that \u201c* * 9 generally, a party who collides with a stopped vehicle is guilty of negligence as a matter of law\u201d (39 Ill. App. 3d 172, 176, 350 N.E.2d 219, 222), the reviewing court\u2019s actual holding was a reversal of the trial court\u2019s granting of a directed verdict for the defendant and a remandment of the case for a new trial on all issues.\nIn determining the law applicable to the instant case we subscribe to that set forth in Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App. 3d 158, 392 N.E.2d 183, wherein the appellate court states:\n\u201cThe occurrence of an accident, even where the plaintiff has exercised ordinary care, does not of itself raise any presumption of negligence on the defendant\u2019s part. [Citation.] A rear-end collision does not automatically create an inference as a matter of law that the driver of the rear car was negligent or that he was following too closely or driving too fast for conditions. It is the responsibility of the trier of fact to determine whether the rear driver, in such accidents, was acting reasonably under the circumstances, or that the accident was unavoidable.\u201d (Emphasis added.) 74 Ill. App. 3d 158, 163, 392 N.E.2d 183, 186.\nThe plaintiff argues that the effect of the jury finding her free from contributory negligence mandates a conclusion that there was no question of fact for the jury to decide and that she should have prevailed in regard to her motions for a directed verdict or judgment n.o.v. The law as set forth in Burgdorff clearly refutes this claim of the plaintiff.\nThe plaintiff would classify the instant case as one falling within the \u201cPedrick rule.\u201d (Pedrick v. Peoria & Eastern Ry. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) We will forbear reiterating the facts. However, there is present a clear question as to the negligence issue which should have been submitted to the jury. The speed of the defendant, the road conditions, traffic problems, and his evasive albeit futile actions to avoid a collision\nwere all matters to be considered by a jury. This court in the case of Wolfe v. Whipple (1969), 112 Ill. App. 2d 255, 262, 251 N.E.2d 77, 80, stated as follows:\n\u201cIt is recognized in the Pedrick case, that where a substantial factual dispute is disclosed by the evidence, either on the issue of plaintiff\u2019s due care or defendant\u2019s negligence, or where an assessment as to credibility of witnesses and an election between conflicting evidence may be decisive, the constitutional right of the parties to a jury determination should be carefully preserved, and it would be erroneous to direct a verdict in such case. The question, therefore, is whether the record in this case requires or justifies the direction of verdict.\u201d\nIn light of this court\u2019s language in the case of Wolfe and the circumstances present in the instant case, we do not believe that the Pedrick case requires or authorizes a directed verdict or a judgment n.o.v.\nFor the reasons set forth the judgment of the Circuit Court of Peoria County is affirmed.\nAffirmed.\nALLOY and STOUDER, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SCOTT" } ], "attorneys": [ "Patrick T. Moos, of Smith, Moos, Schmitt & O\u2019Brien, Ltd., of Peoria, for appellant.", "Edward R. Durree, of Strodel & Kingery Associates, of Peoria, for appellees." ], "corrections": "", "head_matter": "HELEN KENT, Plaintiff-Appellant, v. KNOX MOTOR SERVICE, INC., et al., Defendants-Appellees.\nThird District\nNo. 80-356\nOpinion filed April 22, 1981.\nPatrick T. Moos, of Smith, Moos, Schmitt & O\u2019Brien, Ltd., of Peoria, for appellant.\nEdward R. Durree, of Strodel & Kingery Associates, of Peoria, for appellees." }, "file_name": "0223-01", "first_page_order": 245, "last_page_order": 250 }