Defendants, T. W. Moore Feed & Grain Company, hereafter called Moore, Berthold C. Humphreys, Jr., hereafter called Humphreys, and Medford M. Cox, hereafter called Cox, appeal from judgments entered upon jury verdicts in favor of plaintiffs, Ernest Sabo, hereafter called Sabo, and Fred J. Allen, hereafter called Allen, in plaintiffs’ actions for personal injuries.
The complaint, containing one count for Sabo and one for Allen, alleges that by reason of the negligence of the defendants, an automobile driven by Cox, and a truck owned by Moore and driven by Humphreys, collided; as the result of the collision cattle being transported in the truck were released; shortly thereafter one of the cattle ran into the automobile owned and driven by Sabo, in which Allen was a passenger.
The evidence shows that at approximately 1:00 a. m. on August 27, 1965, Humphreys was driving Moore’s tractor-trailer north on Route 159. The trailer contained 52 white-faced Hereford steers. Humphreys testified that he was traveling at a speed of 50 miles per hour with his headlights on bright, when he saw the southbound Cox automobile, in its proper lane, approximately 500 yards distant, with its lights on bright. He immediately dimmed his lights; when the vehicles were approximately 450 yards apart he flashed his lights up to bright, flashed them on bright and dim several more times, and when the vehicles were 1,000 feet apart he flashed them on dim. At this point, the Cox vehicle dimmed its lights and when on dim, only one headlight was lighted. When the vehicles were approximately 400 to 500 feet apart, the Cox automobile went off the road. The automobile returned to the pavement and went off the road a second time. Humphreys could not state the distance between the two vehicles at that time. He immediately grabbed the trailer brake, the Cox automobile came back onto the pavement into the truck’s lane of travel and collided with the right front wheel of the tractor. After the impact the truck jackknifed, Humphreys lost control, the truck went across the highway and turned over on its side on the west side of the road. Humphreys got out of the cab, and almost immediately thereafter the tractor caught fire.
The cattle trailer was a “double-decker,” with gates which divided each deck into three sections. The gates were secured by chains, and in order to release the cattle it was necessary to open the doors of the trailer, and open the gates from the inside. After the collision the doors at the rear of the trailer were in place, and closed.
Humphreys had suffered a cut on the head, and after about 5 minutes, left the scene to go to the hospital. Several people had gathered at the scene, he told several bystanders that the cattle were not to be released regardless of what happened, and rather than release them, they were to be permitted to burn to death.
Cox testified that he was driving south on Route 159 at a speed of 50 to 55 miles per hour. He saw the truck for the first time when the vehicles were 200 to 300 feet apart, and at that time did not notice anything in particular with reference to the truck’s headlights. The truck’s lights were on bright. Cox flashed his headlights for the truck, the truck’s lights blinded Cox, and he ran off on the right-hand shoulder. At no time before the collision did he apply his brakes. He stated that the collision occurred in his lane of travel. The record shows that he was cross-examined extensively with respect to discrepancies between his testimony at the trial and his discovery deposition.
David Neff, driving an automobile south on 159, had followed the Cox car for approximately two miles before the collision. He saw the Cox automobile swerve off the road, and thought it did so twice. He saw the truck’s headlights and did not think they were blinding. He did not see the truck on Cox’s side of the road at any time before it jackknifed.
The collision between the Moore truck and the Cox automobile occurred on Route 159, approximately one-quarter mile north of its intersection with Route 156.
James B. Odie, an Illinois State Trooper, was called to the scene and arrived there at approximately 1:15 a. m. The tractor had been on fire, and he learned that the fire had been extinguished by members of the Hecker Volunteer Fire Department. Neither Cox nor Humphreys were at the scene when he arrived. Odie had seen a number of white-faced cattle approximately one-quarter mile north of the scene, and saw several more on the west side of the road near the overturned trailer. There were two or three cattle still in the trailer.
Bryan Rausch, a passenger in Neff’s car, testified that he and Neff stopped at the scene, gave Humphreys some handkerchiefs because his head was bleeding, and left the scene to obtain help. At that time the cattle were in the trailer, but when they returned from a truck stop a quarter mile distant, the cattle had been released.
Several people who were in the restaurant at the truck stop testified that they went to the scene of the collision, and saw no cattle running at large. Two of these witnesses stated the trailer doors were closed. There was some general conversation about releasing the cattle and someone, not identified, released them.
One of the volunteer firemen testified that when he arrived at the scene, the cattle had not been released. He and the other firemen attempted to extinguish the flames, but ran out of water. They returned to Hecker, and when he came back to the scene approximately 40 minutes later, the steers had been released.
Arthur Budde testified that he was one-quarter mile south of the scene when he heard a crash, and saw flames. When he arrived at the scene, Humphreys was at the rear of the trailer. He observed that the trailer doors were closed. He drove Humphreys to the hospital at Red Bud, and when they arrived there he asked Humphreys whether he should release the cattle. Humphreys replied “Not unless you want to take the responsibility for it— just leave them in there.”
At approximately 1:40 a. m. on August 27, 1965, Sabo was driving his Renault automobile north on Route 159. Allen was riding in the front seat and Sabo’s son, Michael, was riding in the back seat. Both Allen and Michael were asleep. He had been driving at approximately 65 miles per hour and as he approached the intersection of Routes 159 and 156, he decelerated to approximately 50 to 55 miles per hour. He dimmed his lights for an oncoming car, and when he was approximately one-quarter mile south of the intersection of the highways, he saw a white-faced steer in his lane of travel. It was about 50 feet ahead of him when he first saw it. He applied his brakes, but collided with the steer. He was knocked unconscious, and learned later that after striking the steer, his car had collided with an oncoming automobile.
Verlyn Smith, an Illinois State Trooper, called to the scene, found a dead steer near the point where he found Sabo’s car and the automobile with which it had collided.
Both defendants contend that the negligence which caused the collision cannot be held to be the proximate cause of plaintiffs’ injuries. They argue that the act of the person or persons who opened the trailer doors and released the cattle was such an independent intervening act as to supersede defendants’ negligence as the proximate cause of plaintiffs’ injuries. They argue further that the force set in motion by defendants had spent itself, and could not have been the cause of the subsequent collision which occurred one-half mile away, and forty minutes later. They contend that the first incident was at an end, the cattle were not released from the trailer until approximately one-half hour after the collision, and except for the intervention of the person or persons who released them, the collision in which plaintiffs were injured could not have occurred. They also contend that they had no control over the person or persons who opened the doors of the trailer and released the cattle, and the collision, at most, created a condition, but was not the proximate cause of plaintiffs’ injuries.
Counsel have cited and argued many authorities in support of their contentions with respect to proximate cause, independent intervening cause, and foreseeability. The statement of the governing rule presents no serious problem. In Neering v. Illinois Cent. R. Co., 383 Ill 366, at page 380,
“The rule that the causal connection between a person’s negligence and an injury is broken by the intervention of a new, independent, efficient and intervening cause so that the negligence is not actionable is subject to the qualification that if the intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of the injury and he may be held liable notwithstanding the intervening cause. The intervening act of a third person does not necessarily relieve the author of an earlier negligent or wrongful act from responsibility when the intervening cause of an injury is of such nature as could reasonably have been anticipated, in which case the earlier negligent act, if it contributed to the injuries, may be regarded as the proximate cause. Garibaldi & Cuneo v. O’Connor, 210 Ill 284; Armour v. Golkowska, 202 Ill 144.”
In Phillabaum v. Lake Erie & W. R. Co., 315 Ill 131, at page 135,
In Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, at page 510,
It appears to us that in determining when the question of proximate cause is one of law, rather than fact, the rule of Phillabaum has been modified by Pedrick.
Despite the apparent simplicity of the rule as stated by the Supreme Court, its application to factual situations has presented complex and serious problems. Probably no other aspect of the law of torts has been the subject of so much discussion and comment. (See Harper and James, The Law of Torts, (1956) Chapter 20;
In Anderson v. Jones, 66 Ill App2d 407,
Under similar circumstances, Mr. Justice Manning of the Supreme Court of New South Wales, in Overseas Tankship, Ltd. v. Morts Dock & Engineering Co., Ltd. (see 100 ALR2d 932), said “To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to apply the decision In re Polemis with any degree of confidence to a particular set of facts would be a grave understatement. I can only express the hope that, if not in this case, then in some other case in the near future, the subject will be pronounced upon by the House of Lords or the Privy Council in terms which, even if beyond my capacity fully to understand, will facilitate for those placed as I am, its everyday application to current problems.”
There can be no question that the defendants, all of whom the jury found to be negligent, should reasonably have foreseen that the collision of their vehicles might cause injury to someone. It is true that their situations were somewhat different — Moore and Humphreys knew their cargo was cattle, while Cox, prior to the collision did not — and Cox argues that while the rule of foreseeability might possibly apply to the other defendants, it is not applicable to him.
In our opinion, the test is not quite so subjective or narrow as Cox contends. That a vehicle with which his automobile collided might be loaded with livestock is not so bizarre a situation as to remove it from the scope of what is reasonably foreseeable. It is reasonably foreseeable that, in the event of damage to the vehicle, the livestock might in some manner be released. The burning of one or more vehicles involved in a collision is not so infrequent or unusual as to be unforeseeable. We conclude, therefore, that it was a question of fact for the jury as to whether the defendants ought to have foreseen that the cattle would be released as the result of the collision, and being so released, might cause injury to others. That they might not have foreseen the precise manner in which the release of the cattle was effected is not significant, and it was reasonably foreseeable that they might be released by the action of a person or persons who sought to rescue them from the burning vehicle.
We have considered defendants’ contention that the force set in motion by their negligence had spent itself, and the collision, at most, created a condition but was not the proximate cause of plaintiffs’ injuries. We see nothing to be gained by a discussion of the cases upon which these arguments are based other than to state that the factual situations are so dissimilar that we do not find them controlling as precedents. In our opinion, the trial court correctly held the issue to be one of fact and did not err in submitting it to the jury.
Moore and Humphreys contend that all of the evidence when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors these defendants, that no verdict against them could ever stand. They argue that the only evidence of any negligence on their part is the testimony of Cox, that he was so thoroughly impeached by his prior testimony under oath as to be unworthy of belief, and under Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494,
It is true that the testimony of Cox with respect to what occurred immediately prior to and at the time of the collision was impeached in many particulars, and much of it is contrary to his discovery deposition. However, in Guthrie v. Van Hyfte, 36 Ill2d 252, at page 258,
In Brayfield v. Johnson, 62 Ill App2d 59,
Upon reviewing the record in the light of the relevant authorities, we hold that the trial court properly refused to direct a verdict for these defendants, and the verdict is not against the manifest weight of the evidence.
Moore and Humphreys contend that statements made in the closing argument by plaintiff’s counsel constitute a judicial admission that they were not liable. Plaintiff’s counsel stated that he was particularly impressed with Humphreys’ truthfulness, but Cox had consistently lied; that he could not, in good conscience, state that he felt that Humphreys was at fault, or that the truck, prior to the collision, had been on the wrong side of the road.
Unless the statements of counsel constitute judicial admissions, they would not serve to relieve defendants of liability. In Rosbottom v. Hensley, 61 Ill App 2d 198, at page 215,
Moore and Humphreys contend that certain remarks of counsel for Cox, made during final argument, were so prejudicial as to deprive them of a fair trial.
The record shows that counsel for Moore and Humphreys argued before counsel for Cox. During Cox’s argument two objections were made, one by plaintiffs’ counsel and one by counsel for Moore and Humphreys. Both objections were overruled by the trial court. In final argument, plaintiffs’ counsel answered those portions of Cox’s argument to which objections had been made.
Nothing is to be gained by quoting here the statements of which Moore and Humphreys complain, and it suffices to say that they might be categorized as attacks on opposing counsel. That an occurrence of this type is not without precedent is evidenced by the length of the annotation found at 96 ALR2d 9.
Each of the arguments in this case contains statements which should not have been made. In considering a similar situation, this court, in Wells v. Gulf, M. & O. R Co., 82 Ill App2d 30,
In reviewing the arguments of counsel in the light of the above quoted rule, we cannot say that in refusing to grant Moore and Humphreys a new trial, the trial court abused its discretion.
For the reasons set forth, the judgments of the Circuit Court of St. Clair County are affirmed.
Judgments affirmed.
MORAN and EBERSPACHER, JJ., concur.