Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles Edgar Woodward, Judge.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
This is an appeal from a judgment in favor of the plaintiff, entered on February 27, 1942, in an action to recover damages for personal injury sustained as a result of a collision between a bicycle ridden by the plaintiff and a truck driven by defendant's servant.
The accident occurred at about ten o'clock at night on April 26, 1940, at the intersection of Jefferson and Michigan Streets in Joliet, Illinois. Jefferson Street at the point of intersection was about forty-five feet in width and extended east and west, while Michigan Street was about thirty-six feet in width and extended north and south. Both streets were paved with concrete, and there were four brightly burning electric lights at the intersection. Plaintiff, a boy thirteen years of age, was riding a bicycle in a westerly direction on the north side and near the curb on Jefferson Street. As he approached the intersection, he observed defendant's truck traveling east on the south side of Jefferson, also approaching the intersection. The driver of defendant's truck intended and did make a left turn at the intersection and headed north on Michigan Street. As the truck approached the intersection, it headed in a somewhat northeasterly direction toward the center of Jefferson Street, apparently preparatory to making a left turn. While there is some discrepancy in plaintiff's testimony as to his exact location at the time defendant's truck reached the intersection, his testimony fairly discloses that plaintiff and defendant's driver arrived at the intersection at substantially the same time. Plaintiff, thinking that he could not with safety proceed in front of the truck, turned his bicycle to the left with the view of passing the truck at its rear. To do so, it was necessary for him to pass onto the south side of the center of Jefferson Street. He discovered, however, that there were cars approaching from the west and for this reason he could not pass the rear of the truck. Hence, plaintiff collided with the truck at a point near its rear end, either while the truck was making the left turn or after it had made the turn and was headed north.
The sole error relied upon for reversal arises from the court's refusal to direct a verdict in favor of the defendant. It is argued that the action of the court in this respect was erroneous for two reasons - (1) that the plaintiff was guilty of such contributory negligence as to bar recovery, and (2) that there was a failure of proof as to negligence, with which the defendant was charged.
Defendant's argument as to plaintiff's contributory negligence is predicated largely upon the contention that the bicycle ridden by the plaintiff was without a headlight in violation of the Illinois statute. Plaintiff contends that the statute makes no such requirement. The issue thus raised involves a construction of certain provisions of the Uniform Act Regulating Traffic on Highways, approved July 9, 1935. (Illinois Revised Statutes, 1939, Chap. 95 1/2.) Defendant relies upon Section 107 of Article XV, entitled "Equipment", which privides:
"Lamps on other vehicles and equipment. All vehicles, including animal-drawn vehicles and including those referred to in Section 102(b) not hereinbefore specifically required to be equipped with lamps, shall at the times specified in section 103 hereof be equipped with at least one lighted lamp or lantern exhibiting a white light visible from a distance of 500 fee to the front of such vehicle and with a lamp or lantern exhibiting a red light visible from a distance of 500 feet to the rear."
Section 102(b) referred to in this section has to do with certain implements of husbandry and is not material. Section 103 referred to in this section provides, among other things: "When upon any highway in this State, during the period from sunset to sunrise, every motorcycle shal carry one lighted lamp and every motor vehicle two lighted lamps showing white lights, or lights of a yellow or amber tint, visible at least five hundred (500) feet in the direction toward which each motorcycle or motor vehicle is proceeding," etc.
It is at once apparent that if Section 107 is applicable, it must be because bicycles are included in the term "all vehicles". That such is not the case, however, is definitely refuted by Section 2(a) of Article I of the Act, whereby the term "vehicle" as used in the Act is defined: "Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power, or used exclusively upon stationary rails or tracks." A bicycle being a device "moved by human ower", is thus excluded from the term "vehicle". It would seem to follow that the word "vehicle" used in Section 107 does not include bicycles.
Defendant, however, further calls our attention to Section 24 of Article II of the Act, as follows: "Traffic laws apply to persons riding bicycles or animals or driving animal-drawn vehicles. Every person riding a bicycle or an animal or driving any animal drawing a vehicle upon a roadway shall be subject to the provision of this Act applicable to the driver of a vehicle, except those privisons of this Act which by their nature can have no aplication."
If this section sustains defendant's contention, it is in direct conflict with the section excluding bicycles from the word "vehicle". We are of the view that the requirements of Section 24 are directed at the conduct of persons and not the things therein enumerated. Under this view, there is no conflict between the two paragraphs.
So far as we are advised, the question under discussion has not been decided by an Illinois court. We feel reasonably certain, however, that the statute which requires headlights upon certain vehicles when operated on the highway at night has no application to a bicycle. If it be assumed, however, that defendant's contention in this respect is tenable, it would not necessarily follow that plaintiff's failure to observe the statutory provision would bar recovery. It still might be a question for the jury, as to whether the alleged violation was the proximate cause of the injury. Jeneary v. Chicago & I. Traction Co., 306 Ill. 392, 395, 138 N.E. 203.
The negligence chargedagainst the defendant, so far as here material, was that its driver made a left hand turn into Michigan Street to the left of the center of the intersection of Michigan and Jefferson, and that the left hand turn was made without giving suitable, sufficient and proper notice, signal and warning. Plaintiff stresses the argument that the defendant, in making the left hand turn, "cut the corner"; that is, that the turn was made to the left of the center of the street intersection rater than to the right, as apparently is required by Section 62(b) of the Act heretofore referred to. On the other hand, the defendant insists that even though it "cut the corner," which it denies, that this could not have been the proximate cause of the collision. The question thus presented is a close one, but we are not prepared t deny plaintiff's ...