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Wilson v. Hobrock

OPINION FILED MAY 31, 1951

DONALD WILSON, MINOR, INDIVIDUALLY AND AS ASSIGNEE OF VILONA WILSON, BY VILONA WILSON, NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

HOWARD HOBROCK, DEFENDANT-APPELLANT.



Appeal by defendant from the Circuit Court of Cass county; the Hon. A. CLAY WILLIAMS, Judge, presiding. Heard in this court at the May term, 1951. Affirmed. Opinion filed May 31, 1951. Rehearing denied September 4, 1951. Released for publication September 4, 1951.

MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 4, 1951

This case arises out of an intersection collision which occurred in the City of Beardstown on May 4, 1947, between the motor bicycle ridden by plaintiff-appellee Wilson and the automobile being driven by defendant-appellant Hobrock. The parties will be mentioned herein as plaintiff and defendant.

Plaintiff, by his mother and next friend, filed suit against defendant, a trial was had, and the jury returned a verdict for the plaintiff in the sum of $4,000, and judgment was entered on the verdict. The trial court denied defendant's motions for judgment n.o.v. and for a new trial, and defendant appealed.

For reversal, defendant relies upon the verdict and judgment being against the manifest weight of the evidence; plaintiff's failure to prove his due care by a preponderance of the evidence; the erroneous giving of certain instructions; the refusal of the trial court to admit certain evidence offered by the defendant; and plaintiff's interjection of the matter of liability insurance into the trial so as to deprive defendant of a fair trial. Defendant also contends that the amount of the verdict was excessive.

The testimony material to the defendant's contentions that the verdict and judgment were against the manifest weight of the evidence, and that plaintiff failed to prove his own due care by a preponderance of the evidence may be briefly summarized.

The collision took place at the intersection of Monroe and Eighth streets in Beardstown. Both streets were paved with brick. Monroe street runs north and south and is about twenty-six feet wide and Eighth street, about twenty-eight feet wide, runs east and west. On three of the corners of the intersection there are residences, and a school yard occupies the fourth corner. Plaintiff was riding south on Monroe street on a motor bicycle which he had assembled himself from a bicycle and a washing machine motor. Defendant was proceeding east on Eighth street just prior to the collision which occurred at 5 P.M. on the Sunday in question. It was not yet dark, and the weather was clear and the pavement dry.

Plaintiff testified that when he was ten feet or less distant from the north edge of the intersection, his view being partly obscured prior to that point, he observed defendant "fifty feet or half a block away." At that time plaintiff's speed was fifteen miles per hour. Plaintiff placed defendant's speed at about twice his speed. When plaintiff saw defendant next plaintiff was halfway into the intersection and defendant Hobrock's Model A Ford was just entering the intersection. Plaintiff swerved to his left, but defendant did not swerve but seemed to follow the plaintiff. The collision ensued and plaintiff was thrown to the pavement, dragged up over the curbing and severely injured.

Witness Lawler for the plaintiff testified that she heard defendant tell the plaintiff's mother that the defendant did not see the plaintiff until he hit him. Plaintiff's mother corroborated this testimony, which the defendant denied. The defendant testified under Section 60 of the Practice Act that at the time of the accident he had a large tractor wheel on the left hand side of his car. From this testimony and that of other witnesses it appears that the wheel was of sufficient diameter to extend the entire length of the running board and from the running board up to the top of the car. Defendant also testified, however, that the wheel did not impair his vision.

The defendant's testimony was substantially that he was going from fifteen to twenty miles per hour, that the plaintiff ran into his right fender, and that the plaintiff admitted he was not watching where he was going. Defendant testified on cross-examination that he did not see the plaintiff when he crossed the west line of Monroe street although he looked up Monroe street, but that he did not see plaintiff until shortly before the collision occurred. Defendant's other witnesses testified that the bicycle ran into the fender of the car, that the plaintiff never changed his rate of speed, that he admitted not looking where he was going, and stated that he was looking at the schoolyard where a ball game was in progress. Plaintiff introduced rebuttal evidence to controvert this last fact.

Upon this record defendant contends that the verdict and judgment were against the manifest weight of the evidence and that plaintiff failed to prove by a preponderance of the evidence that he was in the exercise of due care and caution for his own safety. We are unable to agree with defendant in either contention. Defendant was to plaintiff's right as both approached the intersection. (Ch. 95 1/2, par. 165, Ill. Rev. Stat. 1949 [Jones Ill. Stats. Ann. 85.197]). But the right of way given by the statute, supra, has been construed by the courts of this state as not conferring an absolute right of way regardless of other facts. Salmon v. Wilson, 227 Ill. App. 286, 288; Gauger v. Mills, 340 Ill. App. 1, 6. Under the conflicting testimony summarized above, the questions of right of way and the plaintiff's due care were questions of fact for the jury who had an opportunity to see and hear the witnesses.

The defendant sought to offer evidence that at the time of the collision the plaintiff was operating a motor vehicle without having a license therefor, or a certificate of title, as required by ch. 95 1/2, pars. 8 and 76, Ill. Rev. Stat. 1949 [Jones Ill. Rev. Stats. 85.008, 85.077]. Plaintiff objected to such evidence, and after an offer of proof, the objection was sustained. Defendant assigns error because of such exclusion of evidence and takes the position that the violation of a statute may constitute contributory negligence and raises a question of fact that should be submitted to the jury.

Defendant's theory is that the motor bicycle was home-made, was of dangerous construction and that it could not meet the legal requirements of licensing. The testimony of the witnesses detailing the method of operation and the construction of the motor bicycle was admitted, and was considered by the jury. There is no provision of the statutes of this state compelling vehicles, with the exception of trucks (Ch. 95 1/2, par. 220 et seq., Ill. Rev. Stat. 1949) [Jones Ill. Stats. Ann. 85.252 et seq.] to submit to a safety test. Obtaining a license or a certificate of title does not require a showing of the safe operability of a vehicle, with the above exception. In these circumstances the evidence concerning lack of a driver's license was properly excluded, as it could have had no causal connection with, and was immaterial to the question of plaintiff's due care. Stern & Maley Co. v. Chamales, 205 Ill. App. 275; Crossen v. Chicago & Joliet Electric Ry. Co., 158 Ill. App. 42, 45-6; Humbert v. Lowden, 323 Ill. App. 557. See also: Annotations, 16 A.L.R. 1113, 163 A.L.R. 1375. A fortiori evidence of failure to have a certificate of title in accordance with the terms of the Uniform Motor Vehicle Anti-Theft Act (Ch. 95 1/2, par. 75 et seq., Ill. Rev. Stat. 1949) [Jones Ill. Stats. Ann. 85.076] could have no causal connection with any lack of due care by the plaintiff. This court has held that the Uniform Motor Vehicle Anti-Theft Act is intended to prevent theft and certain unlawful actions and practices alone. Smith v. Rust, 310 Ill. App. 47. The above evidence was properly excluded.

Defendant next complains of the giving of two instructions by the court at the plaintiff's request. The ...


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