Appeal from the Circuit Court of DuPage county; the Hon.
RUSSELL W. KEENEY, Judge, presiding. Reversed and remanded.
MR. JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 25, 1955.
This is an action to recover damages for personal injuries sustained by plaintiff, a woman, age 64 years, by reason of being struck by defendant's auto as she was walking across Gary avenue, a public highway, north of Wheaton, Illinois, at point other than at a crosswalk or intersection.
Plaintiff charged ordinary negligence and wilful and wanton misconduct. The trial court at the close of plaintiff's evidence directed a verdict in favor of defendant and entered judgment thereon. Plaintiff appeals, claiming the questions of contributory negligence, negligence of defendant, and wilful and wanton misconduct should have been submitted to the jury as issues of fact.
An analysis of the evidence shows that Gary avenue, at the place of the accident, curves to the east, north of Jewell road. Jewell road, a gravelled highway, intersects Gary avenue from the west, but does not cross it. The view from the point of the accident to the curve north of Jewell road is unobstructed for some 350 feet; Gary avenue is a two-lane highway, paved with concrete and is 18-20 feet wide, and runs straight for approximately 200 feet before curving to the east. South of where plaintiff was injured, the road runs straight toward Wheaton. The general locale is rural. The day was cloudy, visibility was good, and the roads were dry.
Plaintiff on May 9, 1952, at about 8:30 a.m., was going from her home on Jewell road, on foot, to a cemetery south of Wheaton, and while walking south on the east shoulder of Gary avenue, when approximately 150 feet south of Jewell road, saw her neighbor, Mrs. Regina Perry, accompanied by her daughter, Gail Perry, driving in a car toward Wheaton. She accepted an invitation for a ride by signal, and Mrs. Perry pulled off onto the west shoulder of Gary avenue, opposite plaintiff, and waited for her to cross. A few seconds later a squad car passed Mrs. Perry going south. Plaintiff, before attempting to cross Gary avenue, and while on the shoulder, looked to the north and to the south, saw no cars coming, and started to walk west across the road, and when about on the center line or one foot or one step over on the west side of the highway, west of the center line, struck or was struck by defendant's southbound car as it was being driven in the southbound traffic lane. She could not remember if she looked again after she stepped on the paved portion. She never saw the squad car or the defendant's car; she never heard any auto horn sounded, or the sound of any tires or brakes.
Mrs. Regina Perry testified she observed first the squad car, and then plaintiff looking in both directions, while on the shoulder, but she did not see plaintiff step on the pavement or thereafter crossing the same or the actual impact. Mrs. Perry put her head out of the window, and saw defendant's car when it was about even with or just north of Jewell road, coming south. It was about 200 feet away at that time. When she turned her head back again, the accident had happened and plaintiff was lying on the pavement at an angle in front of the Perry automobile. Defendant had stopped his car about 50-75 feet beyond the point of impact. She estimated 10-30 seconds went by from the time she saw plaintiff look until the time of the accident.
Gail Perry, age 16, who was in the right front seat of the Perry car, corroborated the testimony of her mother, about plaintiff's looking to the south and north before she started to cross Gary avenue. She did not notice what plaintiff did thereafter until she saw plaintiff's feet go up in the air when struck by a southbound car. Plaintiff was then either on the center line or a little west of it. Gail Perry did not hear the sound of a horn or any sound indicating application of brakes. She did see the squad car pass a second or two after they had stopped.
Plaintiff was rendered unconscious, and sustained serious injuries by reason of the accident.
Defendant, upon examination under sec. 60 [Ill. Rev. Stats. 1953, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060], stated he saw plaintiff for the first time when his auto was 200 feet north of Jewell road, and at that time she was 150 feet south of Jewell road.
Defendant claims that plaintiff could have readily seen his approaching car, had she looked, after reaching pavement, and having continued to walk across the pavement, she placed herself in the path of the car and by doing so was guilty of contributory negligence as a matter of law.
Defendant claims that at the time of the accident plaintiff's conduct was governed by sec. 75, par. 172 of chapter 95 1/2, Ill. Rev. Stats., 1953 [Jones Ill. Stats. Ann. 85.204], which provides as follows:
"(a) 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."
We do not construe the statute to mean that a pedestrian who crosses a roadway at any point other than an intersection or a marked crosswalk would not be required to exercise a high degree of care, but we cannot say as a matter of law, from that fact alone, that she would be required to yield the right of way to a motorist, under all conditions. Facts peculiar to a situation might require her to exercise more care than to look in both directions, i.e., to the right and left before stepping upon a paved road, and a failure to look again for approaching traffic could constitute contributory negligence as a matter of law. But in the instant case, the plaintiff could see to the north only some 350 feet. She saw nothing coming from that direction. It was only a matter of 10-30 seconds until she had travelled west from the east shoulder of the highway to the point of impact. We do not believe the failure of plaintiff to look again, if she did not, was so palpably contrary to the conduct of a reasonably prudent person as to show contributory negligence as a ...