Appeal by defendants from the Superior Court of Cook county;
the Hon. JAMES M. CORCORAN, Judge, presiding. Heard in the third
division of this court for the first district at the December
term, 1950. Reversed and remanded for new trial. Opinion filed
September 26, 1951. Rehearing denied November 13, 1951. Released
for publication November 15, 1951.
MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 13, 1951
This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of a collision between an automobile, in which he was riding as a guest, and a truck owned by defendant Shea-Matson Trucking Company and operated by defendant Ryan. Trial by jury resulted in a verdict and judgment for $90,000. Defendants' motions for judgment notwithstanding the verdict and for a new trial were overruled. Afterwards upon the filing by plaintiff of a remittitur of $20,000 the judgment was reduced in a like sum. Defendants appeal.
The collision occurred about 12:30 p.m. on May 11, 1948, at the intersection of Damen Avenue and Polk Street in the City of Chicago, Cook county, Illinois. These streets intersect at right angles. Early on the day of the accident it had rained and at the time of the collision the streets were slightly damp. The visibility was good and there were no obstructions to vision at the intersection. Damen Avenue at the intersection of Polk Street is 56'2" wide from curb to curb and has a double set of streetcar tracks running down the center. The distance between the east rail of the streetcar tracks and the curb of Damen Avenue is 20'5". Polk Street is 38 feet wide from curb to curb. Plaintiff was riding north on Damen Avenue in an automobile driven by Curtis Hall, his employer. Defendants' truck was being driven east on Polk Street. On the day of the occurrence Curtis Hall left his place of business, a short distance south of the scene of the accident, accompanied by plaintiff and one John Thomas, another employee. Plaintiff sat in the rear seat of the automobile on the left side, and Thomas sat next to Hall. As Hall drove north on Damen Avenue his automobile was about two or three feet from the east curb and when it neared Polk Street there were two automobiles proceeding in the same direction, the nearest one of which was twenty or thirty feet ahead of him. This car slowed down as it reached Polk Street, and Hall's automobile, which had been traveling about 20 to 25 miles an hour, also slowed down to 15 or 17 miles an hour when it reached a point about 15 feet south of the south curb of Polk Street.
Hall testified that about 15 feet south of Polk Street he saw defendant's truck about 75 feet west of Damen Avenue; that after his automobile had traveled about one-fourth of the way across Polk Street defendant's truck was about 15 feet west of the west curb; that the next time he looked his automobile was about three-fourths of the way across Polk Street when the truck "was right on me"; that the entire rear of his automobile on the left side was pushed in; that after the impact the truck went only four or five feet before it stopped, and that neither the automobile nor the truck skidded.
John Thomas, testifying in behalf of plaintiff, corroborated the testimony of Hall.
Two police officers, Walsh and Rubyar, assigned to the Accident Prevention division, testified that they reached the scene of the accident shortly after the collision and found Hall's automobile against the northeast curb of Polk Street and Damen Avenue, facing west; that the front end of the truck was between the east curb and the northbound streetcar tracks of Damen Avenue; that the grill on the front of the truck was bent and Hall's automobile was damaged at the left rear door.
Job Walker, plaintiff, aged thirty-three, testified that Hall slowed his car down to somewhere between 15 and 18 miles an hour at a point 16 to 18 feet south of the south curb of Polk Street; that when Hall's automobile was eight or ten feet north of the south curb of Polk Street defendant's truck was twelve or fifteen feet west of the west curb of Damen Avenue; that "it seemed like he was going to stop; I didn't see the truck again"; that Hall's automobile was "somewhere" three-fourths of the way across Polk Street when it was hit by defendant's truck; that the first time plaintiff saw the truck it was twelve or fifteen feet west of the west curb of Damen Avenue and the front wheels of Hall's automobile were about a quarter of the way in from the south curb of Polk Street, and that he did not see the truck until after Hall's automobile had entered the intersection.
Edward Quinn, also a police officer, who came to the scene of the accident before officers Walsh and Rubyar, testified that he found Hall's automobile parked on the north side of Polk Street facing west, and that the truck had the right front fender and headlight damaged and the left front of the automobile was damaged.
Edward Sharp, testified on behalf of defendants that he was standing on the northwest corner of Polk and Damen at the time of the occurrence, where he noticed defendant's truck coming east on Polk Street and heard "tires squeak"; that he saw Hall's automobile coming north on Damen; that Hall tried to swerve around the front of the truck; that the right front fender of the truck hit the left front fender of Hall's automobile and damaged its left side; that the truck was traveling south of the center line of Polk Street and stopped immediately after the collision; and that Hall's automobile continued north on Damen Avenue 30 or 35 feet after the collision.
George Dick testified that Hall's automobile was coming north on Damen Avenue at about 35 miles an hour; that Hall swerved around the truck; that the two vehicles came together east of the northbound streetcar tracks; that Hall tried to swerve out of the truck's way; that he "skidded around" and went sideways in front of the truck; and that Hall's automobile was "sideswiped," "the kind of damage that shears back."
Defendant Ryan testified that when he reached the west side of Damen Avenue he "practically" came to a stop, and that Hall's automobile was about 75 or 100 feet away coming toward the intersection; that the front wheels of his truck were over the northbound or east rail of the streetcar tracks when he saw Hall's automobile "on top of me." Ryan further testified that he was traveling between 10 and 15 miles an hour at the time of the collision; that he applied his brakes and swerved to the left, making a forty-five-degree turn; that the front fender of Hall's automobile struck the front fender of the truck; and that Hall's automobile scraped "along the corner of the truck."
In this case, as in most cases involving intersectional collisions, there is a sharp conflict in the evidence as to the speed and relative positions of the vehicles before the impact.
Defendants contend that the trial court erred in giving the instruction at the request of ...