Appeal by plaintiff from the Superior Court of Cook county;
the Hon. ALAN E. ASHCRAFT, JR., Judge, presiding. Heard in the
second division of this court for the first district at the
October term, 1951. Judgment reversed and cause remanded with
directions. Opinion filed April 1, 1952. Rehearing denied April
14, 1952. Released for publication May 23, 1952.
MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 14, 1952
This is an appeal from a judgment of the superior court of Cook county in favor of defendant, Paul P. George, appellee, in an action for wrongful death. The judgment was entered on the verdict of a jury finding defendant not guilty. Plaintiff, Mildred E. Magill, appellant, instituted the action as the executrix of the last will of the decedent, Clark R.W. Magill, M.D.
Dr. Magill was killed as the result of an automobile collision which occurred at the intersection of Washington boulevard and Lorel avenue. Dr. Magill was driving in an easterly direction on Washington boulevard and defendant was driving in a southerly direction on Lorel avenue. There was a stop sign on the north side of Washington boulevard for southbound traffic on Lorel avenue entering Washington boulevard. There were no stop signs at the intersection for traffic on Washington boulevard.
The case was tried by a jury. At the close of plaintiff's evidence defendant moved for a directed verdict, which was denied. The jury returned a general verdict finding the defendant not guilty and answered in the negative a special interrogatory as to whether the decedent at the time of the collision was in the exercise of due care. Judgment was entered on the verdicts against the plaintiff and for defendant. Plaintiff's motion for a new trial was denied.
Plaintiff contends that the evidence clearly established that decedent was killed as the direct and proximate result of defendant driving into Washington boulevard at a high and dangerous rate of speed without stopping at the stop sign; that the evidence clearly established that the decedent was in the exercise of due care and that there was no evidence at all that the decedent was guilty of contributory negligence; that the verdicts of the jury were unsupported by any evidence and were the product of the misconduct of defendant's counsel at the trial and erroneous instructions by the court, and that therefore the judgment appealed from should be reversed and the cause remanded for a new trial.
One of the instructions to the jury given by the defendant read as follows:
"You are instructed that on May 30, 1948, and for some time prior thereto there was in full force and effect a Statute of the State of Illinois, Chapter 95-1/2, Section 155, in words and figures as follows:
"`(b) No vehicle shall, in overtaking and passing another vehicle or at any other time, be driven to the left side of the roadway under the following conditions:
"`(2) When approaching within 100 feet of any bridge, viaduct, or tunnel or when approaching within 100 feet of or traversing any intersection or railroad grade crossing.'"
The provisions of the statute quoted in the instruction were a part of section 58 of the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1949, chap. 95 1/2, par. 155) [Jones Ill. Stats. Ann. 85.187] which provides:
"Limitations on overtaking on the left. (a) No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right hand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.
"(b) (Set forth in instruction.)
"1. When approaching the crest of a grade or upon a curve ...