Appeal by plaintiff from the Circuit Court of Sangamon county;
the Hon. DE WITT S. CROW, Judge, presiding. Heard in this court
at the February term, 1954. Reversed and remanded. Opinion filed
March 9, 1954. Rehearing denied April 5, 1954. Released for
publication April 5, 1954.
MR. PRESIDING JUSTICE REYNOLDS DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 5, 1954.
This is a personal injury suit growing out of injuries sustained by the plaintiff while crossing Fifth Street in Springfield, Illinois, and being struck by a car driven by the defendant. The plaintiff was a pedestrian. The evidence shows that the street in question is some 40 feet wide, and well lighted at the point of the injury and that there were apparently no obstructions to the view of the motorist or pedestrian. The place where the plaintiff was struck is in dispute, the plaintiff claiming it was in an unmarked crosswalk area and the defendant disputing this point. There is no question that the plaintiff was severely injured. The cause was tried before a jury and the jury brought in a verdict for the defendant. Motion for a new trial was denied and judgment was entered on the verdict of the jury. From that judgment the plaintiff appeals.
The appeal raises three questions as error. 1. That the giving of defendant's instruction No. 17 was error. 2. That the giving of defendant's instruction No. 7 was error. 3. That the court erred in refusing to permit X-ray photographs to be taken by the jury to the jury room during their deliberations.
Defendant's instruction No. 17 was in the following language:
"You are instructed that at the time of the accident in question there was in full force and effect and binding upon the parties hereto, a certain statute of the State of Illinois, providing as follows: `Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.' You are further instructed that a crosswalk under the law of this State is defined as follows:
"`(a) That portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.'
"`(b) Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other markings on the surface.' You are further instructed that if you believe from the evidence in this case that the Plaintiff, prior to and at the time of said accident, was proceeding across Fifth Street at a point other than within a marked crosswalk, or within an unmarked crosswalk and that such conduct, if any, proximately caused or contributed to cause the accident and the Plaintiff's injuries, then and in such state of proof the Plaintiff cannot recover in this case." Plaintiff objects to this instruction on the ground that it does not correctly state the law with respect to the rights of the pedestrian on the public highway or the duties of a vehicle operator. The instruction correctly quotes part of the statute, but fails to quote subsection (d) of the same section, namely section 172, of chapter 95 1/2 Illinois Revised Statutes, 1951 [Jones Ill. Stats. Ann. 85.204], which is in the following words:
"(d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway." In the case of Tuttle v. Checker Taxi Co., 274 Ill. App. 525, an ordinance of the City of Chicago to the effect that a pedestrian when crossing at any place other than a crosswalk must yield the right of way to vehicles upon the roadway, was the subject of an instruction which said in effect that if the jury believed from the evidence that the pedestrian had failed to yield the right of way to the vehicle, and as a proximate result of her failure to yield the right of way to the vehicle, was injured, the pedestrian could not recover. That is almost identical with the instruction in this case, except that here a statute is quoted. The court there held that this instruction was error and in holding it error, said:
"The instruction is also objectionable in that it in effect tells the jury that if plaintiff did not yield the right of way to defendants' cab and because of this was injured, she could not recover. It ignores the rule that both pedestrians and drivers of automobiles on the public streets are required by law to use care to avoid accidents. Drivers of automobiles on the streets must use ordinary care for the safety of pedestrians. . . . The instruction was also erroneous in that it did not tell the jury under what circumstances the automobile had the right of way. There might be a number of circumstances, such as the speed of the automobile, the gait at which plaintiff was walking, her distance away from the automobile at the time she was attempting to cross the roadway, which would determine the right of the vehicle to proceed.
"The instruction is also objectionable in that it ignores the rule, stated in many cases, that the violation of an ordinance is only prima facie evidence of negligence. Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Price v. Illinois Bell Tel. Co., 269 Ill. App. 581; Culver v. Harris, 211 Ill. App. 474.
"The instruction directed a verdict, and errors it contains are not cured by other instructions."
In the case of Breitmeier v. Sutera, 327 Ill. App. 221, an instruction, again, almost identical with defendant's instruction No. 17 in this case, was held objectionable because it did not correctly state the law with respect to the rights of a pedestrian on the public highway or the duties of a vehicle operator. The Breitmeier case cited the case of Moran v. Gatz, 390 Ill. 478. In the Moran case the situation is the reverse of the present case, but the reasoning of the court may well be applicable to this case. There the court said: "Our conclusion, from the language of the act and the authorities cited, is that the right-of-way statute does not give a pedestrian, on a crosswalk, the right of way over all vehicles on the street under any and all circumstances. Each case must be considered in the light of the facts and circumstances surrounding it. The pedestrian's right of way is not absolute because both he and the vehicle happen to be on the street at the same time." In the instant case, even if the proof showed that the plaintiff was crossing the street at a place other than a marked or unmarked crosswalk, and the vehicle had the right of way, that right is not absolute. It must depend upon the particular facts and circumstances of the case. In the case of Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466, a right-of-way instruction was given. In that case the question was one of right of way between two vehicles in an intersection. The instruction given in that case was much broader than the one given here, as the jury was instructed to take into consideration all the other facts and circumstances in the case. Yet the court in that case held the instruction bad in the following language:
"Our courts of review have repeatedly held that the right-of-way statute does not give an automobile approaching an intersection the absolute right of way over one approaching from the left without regard to the distance that vehicle may be from the intersection or the speed at which the vehicles are traveling. See Gauger v. Mills, 340 Ill. App. 1; Alexander v. Sullivan, 334 Ill. App. 42; Bentley v. Olson, 324 Ill. App. 281; Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21; and Krawitz v. Levinstein, 320 Ill. App. 618. Although the instruction was in the language of the statute a modified construction was placed upon the statute by our courts of review and it should have been framed according to that construction and the jury ...