Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.
This case involves a collision between the automobile of the plaintiff, Charles Ditter, and a taxicab of the defendant, the Yellow Cab Company. The collision occurred about 1:00 a.m. in the City of Chicago as both vehicles were being driven in a westerly direction on Jackson Boulevard in the vicinity of Rockwell Street and under or near a railroad viaduct which crossed Jackson Boulevard.
The complaint alleged that the defendant, by its cab driver, was guilty of negligence in that (a) without any warning or signal the cab made a left turn in front of plaintiff's approaching automobile; (b) the cab turned into the path of plaintiff's automobile in such a way as to cause the plaintiff to suddenly apply his brakes so that his automobile swerved out of his traffic lane and struck the curb on the other side of the street; and (c) the cab suddenly and negligently was turned across the plaintiff's path of travel and directly in front of plaintiff's automobile. The defendant filed an answer denying the alleged negligence and also filed a counterclaim alleging negligence on the part of the plaintiff and claiming damages to its taxicab. The jury found for the plaintiff, in the amount of $12,000, and found against the defendant on its counterclaim for damages. Judgment was entered accordingly.
The evidence was conflicting as to the relative positions of the automobile and the cab immediately prior to the change of direction by the cab, as to whether or not the cab driver gave any hand signal or mechanical signal of his intention to make a left turn, and as to the speed of the two vehicles. There was evidence from which the jury could properly find that the cab was being driven in a westerly direction along the north or right side of the street; that from that position the cab driver suddenly and without any signal or warning made a sharp turn to the left directly into the path of the plaintiff's automobile; that this sudden action by the cab driver, without warning, created an immediate danger of collision which could only be avoided by sudden action by the plaintiff without time to consider various possibilities of how best to avoid the collision; and that this action by the cab driver caused the collision and resulted in the injuries to the plaintiff. The evidence, considered in the light most favorable to the plaintiff and drawing reasonable inferences therefrom, supported the finding that the plaintiff was not guilty of such contributory negligence as to bar his recovery. Therefore, the contentions of the defendant that the plaintiff was guilty of contributory negligence as a matter of law and that the verdict was against the manifest weight of the evidence cannot be sustained.
The defendant also contends that the trial court committed prejudicial error in its instructions to the jury. First, the defendant complains of an instruction which told the jury that:
"Although you may believe that the plaintiff drove his automobile on the south half of Jackson Boulevard to go around or pass the cab, that fact alone would not justify you in finding him guilty of such negligence as would bar a recovery in this case unless you believe and find that such act was one of such negligence that an ordinarily prudent man would not commit and that it was such act that under all the facts and circumstances was a contributing proximate cause of the accident in question."
The defendant now particularly objects to the injection of the element of due care into this instruction. This instruction, other than the italicized portion, was essentially Instruction No. 19 tendered by the plaintiff. Counsel for the defendant objected to the giving of the instruction as tendered by the plaintiff, saying: "I think No. 19 excuses him from any liability by reason of any violation of this statute. I do not think the law excuses him from any liability." This was not a valid objection. The instruction before it was altered by the trial court merely explained to the jury that plaintiff's action in driving his automobile on the left side of the center line of the street would not bar his recovery unless such action on plaintiff's part was the proximate cause of the collision.
As said in Parkin v. Rigdon, 1 Ill.App.2d 586, 593, 118 N.E.2d 342, 346: "Regardless of the particular view taken as to whether the violation of a statute prescribing where a pedestrian shall walk, constitutes negligence itself, prima facie negligence, or merely evidence of negligence, such conduct on the part of the pedestrian will not of itself preclude recovery on the ground of contributory negligence if the violation of the statute is not the proximate cause of the injury."
In Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, at page 78, an authority cited by the defendant, the court said that the violation of a safety statute constitutes prima facie negligence but that (page 87), "This in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist."
After Mr. Jesmer, counsel for the defendant, had made objection to Instruction No. 19 as tendered by the plaintiff, the following colloquy occurred between the court and Mr. Jesmer:
"The Court: Gentlemen, I have a notion about this instruction, and I will give it in this manner. Coming down to the next to the last line, where it says 'unless you believe and find that it was the proximate cause of the injury," I am striking 'it was the proximate cause of the injury,' and I am putting after the word 'that' language which will make it read as follows, 'unless you believe and find that such act was one of such negligence that an ordinarily prudent man would not commit and that it was such act that was one that under all the facts and circumstances was a contributing proximate cause of the accident in question.'
"I know what you are trying to drive at, that the mere violation of the ...