In Osborne, the Illinois court held that it was not negligent for a driver to swerve to respond to a "sudden emergency" where the driver had been careful up to that point. Osborne v. Redell, 159 N.E.2d 841 (Ill. App. Ct. 1959). And in Nelson, the question was whether police officers should be liable for instigating a police chase of a suspect who then ran a red light and collided with another car; that is not the same thing as two drivers colliding into each other.
The testimony given by Oliva alone clearly allows the inference that Oliva entered the intersection with a green light; that the light immediately thereafter changed to yellow; and that while Oliva was completing his left turn and thus clearing the intersection, the Moffet vehicle came into the intersection in violation of a red light and collided with the Oliva vehicle, at a time when the Oliva vehicle was lawfully there. While Oliva did not have the right to rely upon the assumption that Moffet would obey laws, as an excuse for Oliva's failure to exercise due care ( Tabor v. Tazewell Service Co., 18 Ill. App.2d 593, 153 N.E.2d 98), it is likewise true that Oliva was not required to anticipate the negligence on the part of Moffet in running a red light (which the jury apparently believed happened). ( Osborne v. Redell, 22 Ill. App.2d 193, 159 N.E.2d 841.) The issue as to whether or not Oliva failed to maintain a proper lookout became a question of fact for the jury and was not, as appellants contend, in the category of testimony as to such a concrete fact which would constitute a judicial admission.
• 2, 3 The question of contributory negligence is ordinarily one of fact to be determined by the jury from all the facts and circumstances in evidence. ( Osborne v. Redell, 22 Ill. App.2d 193, 159 N.E.2d 841.) Contributory negligence will be found as a matter of law only where the evidence is such that all reasonable men would reach the same conclusion. ( Wojtowicz v. Sarno, 45 Ill. App.2d 223, 195 N.E.2d 218.) In the instant case, the evidence revealed that plaintiff was travelling under the speed limit, that he took his foot off the accelerator as soon as he saw the darkened intersection and that he looked for oncoming traffic.
Neither this court nor the trial court may determine as a matter of law what is ordinarily a question of fact unless it can be said that all reasonable minds would reach the same conclusion from the evidence and its reasonable inferences. Osborne v. Redell, 22 Ill. App.2d 193, 159 N.E.2d 841. Be it otherwise, a judgment non obstante veredicto lacks substance and is inappropriate. Undisputed facts are that the accident took place about 5:00 p.m. on a clear, dry day in July on a two-lane North and South highway; that plaintiff, driving alone in his white Pontiac convertible, was proceeding Southward; that the defendant, also alone, was driving his Chevrolet pulling a two-wheel trailer weighing about 1310 pounds in the same direction; that the right rear of the trailer struck the rear end of the Pontiac; that defendant's car laid down skid marks for 35 feet before the impact and 108 feet thereafter; crossed the northbound lane and came to rest on the east side of the highway; the Pontiac traveled a distance of 106 feet and came to rest against a tree on the west shoulder of the highway, and that the impact occurred some 200 feet below the crest of a hill over which both parties had passed.
The courts of review have vacillated between approval and criticism of this type of instruction. For the most recent analysis of this type of instruction see the case of Osborne v. Redell, 22 Ill. App.2d 193, 159 N.E.2d 841, written by Justice Crow of Sangamon County for the Second District of the Appellate Court and concurred in by Justice Wright and Justice Solfisburg. In the conference on instructions plaintiff's counsel cited Krohn v. O'Bara, 351 Ill. App. 476, 115 N.E.2d 569, as authority for his objection to defendant's instruction No. 20. This case is also a pedestrian at a crosswalk case.
In this case, there is ample evidence to raise the following questions of fact: Was Welsh suddenly brought face to face with an emergency, not his own creation? Was this emergency the result of his own negligence, or was it the something he, as a reasonable person, could not foresee? Upon being confronted with the emergency, did he act as a reasonably prudent person would act for his own safety? Was what was done by Welsh no more than might have been expected from an ordinarily prudent person, placed in like circumstances? These questions are questions of fact for the jury and on the question of contributory negligence, as raised by the defendant, using the language in the case of Osborne v. Redell, 22 Ill. App.2d 193, 203, 159 N.E.2d 841, "there is no theory, under the circumstances, under which to conclude, as a matter of law, that due care for his own safety required of the plaintiff that he do differently than he did." We have examined the objections to the instructions and find no merit in them.