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Bertrand v. Adams





Appeal by plaintiff from the Circuit Court of Randolph county; the Hon. R.W. GRIFFITH, Judge, presiding. Heard in this court at the May term, 1951. Judgment affirmed. Opinion filed October 24, 1951. Released for publication December 5, 1951.


The plaintiff, Howard C. Bertrand, brought this suit for personal injuries to himself and damages to his automobile, incurred in a collision with a truck owned by defendant, George Bennett, and driven by the latter's agent, Charles F. Adams, the other defendant. Judgment was entered upon a verdict for defendants.

On this appeal error is assigned on the instructions and also on the claim the verdict is contrary to the manifest weight of the evidence, induced by passion and prejudice resulting from improper arguments of defense counsel.

Testimony by plaintiff and two companions in his car was that they were traveling between 55 and 60 miles per hour on a main concrete highway. As they came over a slight rise they perceived four vehicles ahead of them going in the same direction. In the lead were two trucks owned by defendant, Bennett, and driven by his agents. Plaintiff testified the four vehicles were pretty well scattered, not close together. One of his companions testified they were too close together to permit passing one at a time. The road ahead was straight and there was no traffic approaching. Plaintiff's car was driven past all four of the preceding vehicles at once, and collided with the one leading the procession as it started to make a left turn into an intersecting road. The three witnesses in plaintiff's car testify no left-turn signal was given, and they had no warning of the proposed turn.

Defendant, Adams, testified he was driving this truck, that he looked in his rear-view mirror and saw no vehicle starting to pass, that at least 100 feet before reaching the intersecting road he put out his left arm and signaled for a left turn, and continued to hold his arm out till he started to make the turn, when a car suddenly came from behind and collided with his truck. The driver of the second truck in the procession testified he was about 50 yards behind the front truck, saw the left-turn signal, and then gave a similar signal himself. Thereupon, plaintiff's car passed by and collided with the front truck. Defendant, Bennett, was riding in the front truck and testified he saw his driver give the left-turn signal.

The principal issue as to defendant's negligence pertains to the question whether a left-turn signal had been given. The testimony was so conflicting on this subject we cannot say the verdict was contrary to the manifest weight of the evidence, and, on the undisputed facts, we cannot rule out contributory negligence as a factor in the verdict.

It is asserted that defendants' counsel repeatedly used epithets in argument derogatory of plaintiff. If so, and timely objection was made, the record before us does not so indicate. None of the argument is included in the report of proceedings so that this point is not preserved for review.

The court instructed the jury in the language of the statute as to the law prohibiting the overtaking and passing of any vehicle when approaching within 100 feet of, or traversing, any intersection. This instruction tendered by the defense is now assigned as error on the ground it was an abstract proposition of law, omitted the element of proximate cause, and would mislead the jury.

As a general rule, where an instruction is given in the language of the statute which is pertinent to the facts, it must be regarded as sufficient. Deming v. City of Chicago, 321 Ill. 341. This case revolves about the undisputed fact of defendant's turning left into an intersection while plaintiff was endeavoring to pass. When plaintiff and his driver perceived slowly moving traffic near the intersection they were confronted by the very danger at which the statute is aimed and a duty arose to act accordingly. Under these conditions the statute is clearly pertinent to the facts.

This was not a mandatory instruction and the requirement of proximate cause was fully covered in other instructions. The court specifically instructed the jury that plaintiff's violation of a statutory duty, if any, does not bar his right to recover, unless the violation proximately contributed to cause plaintiff's injuries. In view of the foregoing, the jury could not have been misled under these instructions, which were applicable to the facts, and the giving of the statutory rule was not error.

The court also gave defendants' instruction which contained the phrase: "The plaintiff is required by law to establish his case by a preponderance of the evidence." Appellant contends the use of the word "establish," constitutes reversible error, citing Hurzon v. Schmitz, 262 Ill. App. 337, from this district; also, Baker v. Thompson, 337 Ill. App. 327; and Hughes v. Mendendorp, 294 Ill. App. 424. We have examined these cases and find the first one supports the contention, but the other two are not in point.

We observe that, in Hemphill, Ill. Jury Instructions, sec. 247, it is stated: since "prove" is generally given among the definitions of "establish," use of the latter word is not error, citing Hogg v. Fannie May Candy Shops, Inc., 321 Ill. App. 640.

In McMillian v. McLane, 338 Ill. App. 514, it was noted that Webster's Unabridged Dictionary gives as a principal definition of the word "prove": "To demonstrate by test, to establish, to verify."

Mayers v. Smith, 121 Ill. 442; Cutler v. Pardridge, 182 Ill. App. 350; and Barretta v. Chicago Rys. Co., 214 Ill. App. 455, are cases in which instructions containing the word "establish," were criticized on other grounds. It is apparent from reading these decisions that ...

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