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Randal v. Deka

APRIL 24, 1956.

EARL RANDAL, APPELLANT,

v.

CLARENCE DEKA, APPELLEE.



Appeal from the Circuit Court of Cook county; the Hon. FRANK H. BICEK, Judge, presiding. Reversed and remanded.

PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT. Rehearing denied May 3, 1956.

An action was brought by the plaintiff against the defendant for personal injuries sustained by the plaintiff, a pedestrian, when he was struck by the automobile of defendant at the intersection of North avenue and Linder street in the City of Chicago. At the trial the jury returned a verdict in favor of the defendant. The trial court overruled plaintiff's motion for new trial and entered judgment on the verdict, from which judgment this appeal is taken.

The plaintiff urges that the court erred in giving instructions to the jury on behalf of the defendant and in certain rulings on the evidence, and that the the verdict is against the manifest weight of the evidence.

The defendant's theory is that the plaintiff was guilty of contributory negligence in crossing the street directly in front of defendant's automobile; that the plaintiff was not crossing the street at a crosswalk and that, even if he was, he nevertheless was guilty of contributory negligence since he had been standing in a place of safety on the raised center portion of North avenue and left that place of safety when the defendant's car was so close to him that it could not be stopped; that the defendant was proceeding at a reasonable rate of speed and was in the exercise of ordinary care.

North avenue at the scene of the accident is about fifty feet wide. Down the center of that street is a raised concrete abutment two or three feet wide and four or five inches high. The east and west drives of North avenue are each approximately twenty-seven feet wide. Linder avenue from curb to curb is about twenty-five feet wide, and as it crosses North avenue jogs west, that is, Linder avenue on the south side of North avenue is farther west than Linder avenue on the north side of North avenue. The accident occurred September 6, 1954 at about eight o'clock in the evening. The pavement was dry. The weather was clear, and though it was dusk at the time of the accident, visibility was good.

At the time of the accident plaintiff was going south across North avenue. The evidence is in conflict as to whether or not at the time he was within the lines of the east crosswalk of Linder avenue. There is no dispute that the automobile driven by the defendant struck the plaintiff, and that he was thrown forward and to the right of the car. He was thrown five feet according to testimony of defendant's witness. Plaintiff was a man thirty-two years of age in previous good health, and he sustained serious injuries. The defendant at the time of the accident was eighteen years old. The evidence is in conflict as to the speed at which the defendant was traveling and as to the efforts he made to avoid striking the plaintiff.

The plaintiff urges that the jury was improperly instructed.

The court gave nineteen instructions at the request of the defendant. Eight of these concluded with "you should find the defendant not guilty" or similar language. In addition, other instructions, while not peremptory in form, contained statements to the effect that under certain circumstances the plaintiff would not be entitled to recover. Seven of the instructions were concerned with the contributory negligence of the plaintiff. Two separate instructions which we will discuss later set out in haec verba the identical statutory provision governing the duty of a pedestrian crossing a roadway at any point other than a marked crosswalk.

In Chism v. Decatur Newspapers, Inc., 340 Ill. App. 42, the court uses language which is particularly apt and applicable to the case now before us. In the opinion the court says:

"The defendant tendered 25 instructions, of which 21 were given. Six of these instructions concluded `The jury must find for the defendant,' or `You must find the defendant not guilty,' or words to that effect. Nine instructions mentioned that the plaintiff must be in the exercise of ordinary care for his own safety or that he must not be guilty of contributory negligence.

"One instruction, defendant's (a), mentioned the matter of due care twice; and defendant's instruction (1) three times mentioned the duty of the jury to disregard sympathy.

"This was not a complicated case. It was a typical negligence action, and no unique legal points were involved. It is true that the theories of how the accident occurred were in conflict, but we see nothing about the case that should make the instructions so lengthy, involved and repetitious. The wise trend of the courts of this State is definitely against such instructions. Baker v. Thompson, 337 Ill. App. 327, and the cases therein referred to.

"It is not proper for a party to a lawsuit to ask a witness to repeat eight or nine times a bit of evidence that is favorable to the interrogator for the purpose of impressing that fact upon a jury, and by the same token a jury should be told once only about each proposition of law. To do otherwise will lead to a contest between the litigants to see how often they can repeat that which seems favorable to their cause.

"We are fully in accord with the view expressed in Baker v. Thompson, supra, and feel that when defense attorneys in negligence actions tender an excessive number of instructions, filled with repetition and containing many of a peremptory nature, they do so at their own peril in the event the case is reviewed. Such instructions cannot aid the jury members, but rather will ...


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