Appeal from the Circuit Court of Du Page county; the Hon.
CASSIUS POUST, Judge, presiding. Judgment affirmed.
JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.
This was an action to recover damages for the deaths of the plaintiffs' intestates, they having been killed while crossing over Route 66 west of the Downers Grove Lemont Road in Du Page county, Illinois. The case went to the jury upon the issues of negligence of both defendants as to the claim of Anna Veselich, administratrix of the estate of George Veselich, deceased, and to the jury in reference to the claim of Anna Pozek, administratrix of the estate of John Pozek, deceased, as to the defendant Lichtsinn. The jury returned verdicts finding both defendants not guilty. Plaintiffs' motion for new trial was denied and judgment entered on the verdicts.
The plaintiffs' theory of the case is that the overwhelming weight of the evidence supported their version of the accident, which was that the plaintiffs' intestates were crossing Route 66 at a place that could be considered the crosswalk; that under either the plaintiffs' or defendants' version of the case, the questions of liability were very close and were for a properly instructed jury; that the court's instructions gravely misinformed the jury; and that the court erred in denying plaintiffs' aerial photographs.
Defendants' theory is that the virtually undisputed evidence shows that the plaintiffs' intestates were killed on a Sunday evening in October, while endeavoring to cross an arterial highway in the dark, in heavy traffic, seventy-five to one hundred twenty-five feet west of the intersection of Route 66 with Downers Grove Road, when they stepped back from the center of the highway into the path of defendant Lichtsinn's automobile west bound on Route 66; that contrary to the plaintiffs' contention, the facts were not close; that in addition, there was not a scintilla of evidence that the plaintiffs were crossing at a crosswalk or were in the exercise of due care and caution for their own safety; that not only were the fact questions of negligence and contributory negligence properly resolved by the jury, but as a matter of law the evidence supported a finding only for the defendants.
On Sunday, October 11, 1953, shortly after 6:00 p.m., the decedents, John Pozek and George Veselich, attempted to cross Route 66 from the north shoulder to the south shoulder of the highway at a point seventy to one hundred twenty-five feet west of the intersection of Route 66 with Downers Grove Road. The decedents left John Pozek's home, which was located approximately six hundred feet north of Route 66 on the west side of Downers Grove Road, in Pozek's car to permit Veselich to board the bus at Route 66 on Downers Grove Road, leaving Pozek's home at 6:12 or 6:13 p.m. The bus was due to arrive at the southwest corner of the intersection at 6:22 p.m., usually arriving at 6:25 p.m.
Pozek apparently drove his car to Route 66, turned north parking the car on the north side of Route 66 one hundred thirty to one hundred forty feet west of Downers Grove Road. Route 66 was heavily traveled at the time and Pozek and Veselich apparently reached the center of the highway and waited for east-bound traffic to break in order to complete their crossing. The defendant Lichtsinn was driving his car in a westerly direction on Route 66 in the inner lane at fifty to sixty miles per hour, while the defendant Lieberman was driving in the inner lane in an easterly direction towards Chicago at about twenty to thirty miles per hour in heavy east-bound traffic. At the time of the occurrence the weather was clear and cool and it was dark. According to the testimony of Mr. Scudder, who was north bound on Downers Grove Road, the traffic was so heavy on Route 66 that he waited five to ten minutes for traffic on Route 66 to open so that he could cross the highway in his vehicle. He testified that the accident happened between 6:15 and 6:30, and traffic from Downers Grove Road had to stop for traffic on Route 66.
As the defendant Lichtsinn approached the point where Pozek and Veselich were standing in the middle of the highway, he testified that they stepped back into the west-bound traffic lane into the path of his vehicle. He attempted to avoid the men, and failing to do so, struck them. Both men were thrown into the air, one being thrown into the east-bound lane of traffic in front of or under the car of defendant, Dr. Lieberman, who at the time had slowed his vehicle. Both men were killed and the record is not clear as to which man was thrown into the path of Dr. Lieberman's car.
Louis Lieberman, a dentist by profession, one of the defendants called as an adverse witness under Section 60 [Ill. Rev. Stats. 1953, ch. 110, § 184], stated that he was driving his 1951 Oldsmobile in an easterly direction towards Chicago at about twenty-five to thirty miles per hour and as he approached Downers Grove Road, he thought he saw a man to the left of him out of the corner of his eye. He admitted testifying at the coroner's inquest that he said he must have been maybe two or three hundred feet from the intersection when this accident happened and it seemed to him that he saw a man in the center of the highway, a sort of tall man. To the best of his recollection, the man was standing seventy or eighty feet from the intersection and might have been moving a little bit; he was going about twenty miles per hour, or maybe a little less, at the time he hit the man. He stated that his car was in the same position in reference to the center of the road at the time he came in contact with the man as it was when he first saw him, and that he thought that the left front bumper came in contact with the man and that he believed his car passed over him.
The other defendant, Lichtsinn, was called as an adverse witness, and he testified that there were three individuals riding in the front seat of his car and two in the back; that as he approached Downers Grove Road he was traveling on the inside lane between fifty and fifty-five miles per hour and he was going about fifty to fifty-five miles per hour when he was fifty feet east of the intersection; he testified that the men were ten or fifteen yards in front of him when he first saw them. He recalled testifying at the coroner's inquest, and he did answer ten or fifteen or twenty feet away. He further testified that when he first saw them they were to the left of his car, directly in front, to his left; they were just across the double line in the traffic of the opposite direction and that the impact occurred when he turned his wheels to the right. He testified that the traffic moving in the opposite direction was heavy; that it was dark out, and the cars going in the opposite direction had their lights on. He further testified that he was not good at estimating distances.
John Stokes testified for the plaintiffs that he was going west on Route 66 to his home in Peoria; that as he approached Downers Grove Road about three blocks away, a vehicle passed his car when he was going somewhere around sixty miles per hour; that this was the same car that was involved in the accident; that this car was being driven on the inside lane and there were no other vehicles in front of witness's vehicle on the inside lane and no cars in the visible distance ahead that were ahead of witness's car. He did not see the actual impact but saw the bodies after the accident. He heard the impact and saw the men being propelled by the force of the car and one of the men was propelled back toward him; that he pulled up and stopped, and the closest body to the intersection was about eighty or ninety feet away; the other body was about sixty feet farther away west.
Howard Pamplin, a State Patrolman, testified for defendants that he arrived at the scene of the accident about 6:35; that traffic on Route 66 was very heavy in both directions at that time; that when he arrived at the scene he found another State Police Squad there which had been standing by until he arrived. He saw the bodies of the two persons who had been killed lying on the pavement. One of the bodies was lying approximately one hundred twenty-five feet west of Downers Grove Road and the other body approximately two hundred feet, they were about seventy-five feet apart; that he found a car of one of the men who was killed, Mr. Pozek, parked on the north side of Route 66, west of the intersection, about one hundred thirty to one hundred forty feet from Downers Grove Road.
Jack Carlstrom, a Sergeant, employed by the Illinois State Highway Police, testified for defendants that he had occasion to investigate the accident and that the condition of the traffic was very heavy, this being a Sunday evening. The bodies of the two men were separated by about fifty to seventy-five feet. He checked defendant Lichtsinn's car and the windshield on the left side was broken, and the headlight on the left side was broken off.
James F. Koback, testified for defendants that he was employed by the Winfield Construction Company and that in October 1953, he was a soldier in the United States Army, and that he was in a car with defendant Lichtsinn at the time of the accident; that he was in the back seat and that he was trying to catch a little nap and he did not actually see what happened before the accident took place. The first he had any notice or knowledge of the accident was when he felt the impact and the car swerved and came to a stop; that he saw the bodies of the two people that were killed before he got out of the car; that they were in back of them in the two opposite lanes going in the opposite direction south of the center line of Route 66; that there seemed to be sixty feet separating the bodies.
Robert Ladek testified for defendants that he was in the automobile being driven by defendant Lichtsinn and that the accident happened between 6:00 and 6:30; that he was in the front seat and that just before the accident he was trying to get some sleep; that he had his head back on the seat and his eyes closed and he was just dozing off; that he first saw the glass fly from the windshield; that after he got out of the car, the traffic was heavy and all the cars had their lights on; that he saw both bodies in the street and they were about twenty-five to thirty feet apart and that the body closest to Downers Grove Road was seventy-five or one hundred feet and the other body was ...