Appeal from the Circuit Court of Winnebago county; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.
MR. JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
This is an appeal by the plaintiffs, Dartha Cloudman, a minor, and Dorothy S. Warriner, her mother, against one defendant only, Charles Beffa, from a verdict of a jury and a judgment entered in favor of that defendant. The defendant, Rockford Industries Incorporated, is not involved in this appeal. So far as material, the complaint charged that the plaintiff, Dartha, a minor, 16 years old, was seriously injured when struck from the rear by defendant Beffa's automobile when she was riding her bicycle on a public highway; that her injuries were due to the negligence of the defendant Beffa; and that she was in the exercise of due care at the time. The plaintiffs' motion for a new trial was overruled.
A review of the evidence shows that the plaintiff Dartha Cloudman, a freshman in Rockford College, and a classmate, Mary Hamm, were returning to Rockford from Rockton, on Route 2, a two-lane, north-south, 18-foot highway, straight at this point, on bicycles, after dark and about 7:30 o'clock p.m., on October 14, 1953; the weather was clear and the pavement dry; they were riding on the concrete slab, single file, about 75 feet apart, and were riding to the right of the center line of said highway, going south; the road is a busy road, with considerable traffic; each of the bicycles was equipped with a flashlight clamped to the handle bars and pointed slightly down to light the pavement in front; although Mary Hamm was pretty sure Dartha's flashlight was lit at the time she could not at first tell definitely from where she was riding at Dartha's rear, but at another point in her testimony she said she could see Dartha's flashlight was lit from a quarter of a block to Dartha's rear; Dartha says her flashlight was lit at the time of the accident, and it was found lit, detached from the bicycle, after the accident; neither had a light or lamp on the rear; each bicycle had a red plastic reflector about one inch in diameter on the rear mudguard.
The defendant Beffa was driving south on Route 2 in a Pontiac Sedan with one Walter Seaberg, a companion, going in the same general direction as the two girls, and when about 8 miles north of Rockford, as he came over a slight rise in the road, he first came upon Mary Hamm who was riding behind Dartha. There were no cars between the Beffa car and the two bicycle riders in the southbound lane, but a car was approaching from the south, going north, in the northbound lane a short distance away. There is some evidence the defendant's forward vision was impaired some by the lights of the approaching northbound car.
The defendant's automobile passed Mary Hamm, the defendant meanwhile applying the brakes, and swerving about two feet to the left of the center line, then it swerved back into its own lane, and then, again, to avoid Dartha, the defendant started to swerve to the left across the center line, and then collided with Dartha's bicycle, knocking her off her bicycle and about 10 feet west of the pavement. She was riding about 3 feet east from the west edge of the highway, according to the defendant's witnesses, or about half a foot therefrom, according to the plaintiff's witnesses. Shortly after the incident some pieces of mud and a reflector were found on the highway about 3 feet east of the west edge, and the bicycle was on the cement about 4 feet from the west edge of the road.
The defendant was travelling about 40 to 45 miles per hour, with headlights on low beam, illuminating the pavement about 75 feet in front. The defendant did not see Dartha until about the time of the impact and at about that time the car approaching from the south was almost directly opposite the defendant's car and part way off the pavement to the east. The defendant's car was then somewhat east of the center line, crowding that approaching car. The defendant did not see the reflector on the rear guard of Dartha's bicycle or the light on the front. The defendant's car stopped about 50 to 75 feet from the collision, it appearing that the right front fender of the car struck Dartha's bicycle.
The defendant did not sound his horn, and claimed he did not have time to do so. Neither of the two girls heard or saw the defendant's car approaching them just before the accident. Mary Hamm was wearing blue jeans and a dark blue jacket, and Dartha was wearing khaki pants and a dark blue jacket. The plaintiff Dartha Cloudman suffered serious injuries as a result of the collision and the plaintiff Dorothy S. Warriner, her mother, incurred numerous expenses for the treatment of the injuries.
The complaint charged the defendant with excessive speed, failure to keep a proper lookout, and failure to keep his car under control. To sustain these charges there is, in addition to what we've set forth above, evidence as to the speed of the defendant's car being about 45 to 50 miles per hour, that he did not see the first bicycle (Mary Hamm's) until 15 or 20 feet (or it may have been 60 or 70 feet) away from the same, and did not see Dartha's bicycle until a short time before the actual impact.
The specific errors claimed are the refusal of the Trial Court to give two instructions tendered by the plaintiffs as follows:
"1. You are instructed that automobiles have no greater right on the highway than bicycles. At the time and place in question in this case, the plaintiff, Dartha Cloudman, had the right to ride her bicycle, upon the right half of the roadway provided that in using it, she used reasonable care for the safety of others.
"2. The jury is instructed that there is no statute in the State of Illinois which requires that a bicycle driven on the public highway at night be equipped with an electric light on the rear of the vehicle."
We believe instruction No. 1, as a statement of an abstract principle, is possibly not open to serious objection, although it omits the element of the plaintiff Dartha's exercise of due care and caution for not only the safety of others but also her own safety. Passing that omission, however, such an instruction is here merely a statement of an abstract principle, and, if given, could easily mislead the jury, where the instruction does not relate to an issue in the case. There was no issue or dispute as to whether the plaintiff Dartha Cloudman had the abstract right to ride her bicycle upon the right one-half of the roadway. The pleadings made no such issue. The defendant did not tender and the Court did not give any instruction to the contrary of that abstract principle, assuming it to be a correct abstract statement. And there was no issue or dispute as to the fact that she was in fact on the right one-half of the roadway. That circumstance, together with all other material circumstances in evidence, was proper for the jury to consider in determining the questions of negligence and contributory negligence. But an instruction which merely states some abstract principle, sharply and unduly emphasizing some general right, which is not directly in issue, is erroneous: Garvey v. Chicago Rys. Co. (1930), 339 Ill. 276; Baltimore & O.S.W.R. Co. v. Fox (1903), 113 Ill. App. 180; Burke v. Zwick (1939), 299 Ill. App. 558.
Counsel for the appellants cite Molway v. City of Chicago, 239 Ill. 486, their principal case, as an authority for submitting instruction No. 1, and to the effect that a failure to give the same is prejudicial error. We do not so construe that case. There the defendant City of Chicago asked the Court to instruct the jury that "ordinary travel does not include the use of a street by one riding a bicycle thereon . . . A person when riding a bicycle on a street is not using said street for the purpose of ordinary travel." The Supreme Court held that instruction was properly refused. The instruction there involved is obviously not the same as the one here involved, and the negative determination there that the instruction there involved was properly refused is not a precedent for giving the affirmative and abstract and different type of instruction No. 1 requested by the plaintiffs. We have considered the other Illinois cases submitted by the appellants, Kerchner v. Davis (1913), 183 Ill. App. 600, and Christy v. Elliott (1905), 216 Ill. 31, but we believe they also are not in point here.
The same comments apply to instruction No. 2 and, in addition, we observe that the Court refused to give defendant's instruction No. 5, which would have specifically attempted to apply a provision of the statutes of Illinois to the plaintiff Dartha with respect to having a lamp or lantern on the rear of the bicycle exhibiting a red light visible 500 feet to the rear. The pleadings made no issue and the instructions given made no issue to the effect that the statutes did so require such a lamp or lantern. However, again, there was no issue or dispute as to the fact that she had no lamp or lantern on the rear of the bicycle and that circumstance, together with all other material circumstances in evidence, was proper for the jury to consider, regardless of any statute. Instruction No. 2 also was but a statement of an abstract principle (assuming it is correct) and a negative statement at best, and would have sharply and unduly emphasized ...