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Woolsey v. Rupel

MARCH 4, 1957.

FRED WOOLSEY, PLAINTIFF-APPELLEE,

v.

FREDERICK L. RUPEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison county; the Hon. QUINTEN SPIVEY, Judge, presiding. Reversed and remanded.

PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

Plaintiff suffered injuries when he, as a pedestrian, was struck by defendant's car on a rural highway. He obtained judgment on a verdict of $20,000 under a count charging negligence of defendant. The jury found defendant not guilty under a count charging wilful and wanton misconduct. On this appeal, the defendant asserts the trial court should have directed a verdict, or, in the alternative, should have ordered a new trial.

The injury occurred on a paved east-west highway opposite a factory where plaintiff was employed, and the place was not in a restricted speed zone. The factory is on the north side of the road, fenced in, with several gates in the south fence along the road.

According to plaintiff, he had parked his car in a lot on the south side of the road, west of a gate. He then walked east along the south shoulder to a point opposite a gate. He observed that there was no traffic approaching from the east, and then looked west. He saw a car coming with a flashing light indicating a right turn. He waited to see if the car really turned, and when it did, he proceeded across the pavement without again looking to the east. He was looking toward the gate, although he knew it was not used as an exit for vehicles.

As he stepped across the center line, he heard a shout, and upon looking to the east saw a car some 70 feet to the east bearing down on him at about 40 miles per hour. He froze in his position in the west bound lane and was struck by the car. It is disputed whether the horn was sounded, but the defendant unquestionably applied his brakes hard, leaving tire marks about 42 feet long. According to testimony, this length indicates a speed of less than 40 miles per hour. As a reason for not seeing the approaching car, plaintiff testified there was a dip in the road some 660 feet to the east and a car in that area would not have been visible to him.

Another plaintiff's witness estimated the speed of defendant's car as 30 to 35 miles per hour, one said 20 to 25; and the latter estimated the distance traveled from the moment of impact to a complete stop at about 20 feet.

There are other variations in the evidence, but for the most part there is little dispute as to facts. On the face of it, there is a close question whether the defendant was guilty of negligence. And defendant sincerely urges that the plaintiff was guilty of contributory negligence as a matter of law.

Upon full consideration, we have decided that, while there is strong basis for the defense arguments, yet we are unable to say that all reasonable minds would agree that plaintiff was clearly guilty of contributory negligence. Hence, the trial judge properly refused to direct a verdict, or enter judgment contrary thereto. Thomas v. Buchanan, 357 Ill. 270; Campbell v. Ragel, 7 Ill. App.2d 301.

[3-5] The court erred in adopting the theory of plaintiff and instructing that this accident occurred in an "unmarked crosswalk." The statute gives to pedestrians a preferential status when they are in a marked or unmarked crosswalk. No authority is conferred upon pedestrians to select any place that suits their convenience to cross a street or road and thereby designate it an unmarked crosswalk. The law is specific; the preferential status of a pedestrian in a marked crosswalk is extended to one in an unmarked crosswalk "at an intersection." Ch. 95 1/2, Ill. Rev. St., Section 171. By the definitions in Sections 109, 110 and 111 of the act, a private lane does not qualify as an intersection. Cihal v. Carver, 334 Ill. App. 234.

Since the case was tried under an incorrect theory of law, the appropriate action is to award a new trial. Randall v. Randall, 281 Ill. App. 169; Cihal v. Carver, 334 Ill. App. 234. However, there are other errors in the instructions in this case, which would also require reversal, and these are mentioned to avoid their use on a second trial.

Plaintiff's instruction number 2, in some 1300 words, recited to the jury the lengthy charges in the complaint. It is a glaring example of all the evils pointed out in Signa v. Alluri, 351 Ill. App. 11. The charges were in the form of conclusions of the pleader; they might be regarded as fair comment in the attorney's argument to the jury, but they should not come from the lips of the judge.

[7-9] It is permissible to inform the jury of the issues of the case, if in succinct form without undue emphasis. Signa v. Alluri, 351 Ill. App. 11; Warnes v. Champaign County Seed Co., 5 Ill. App.2d 151. As noted in the latter case, plaintiff is not absolutely required to tender such an instruction. The instruction in question was not a statement of issues at all, it did not inform the jury what was denied or what defendant contended.

The mere violation of a traffic regulation is not per se negligence. Burke v. Zwick, 299 Ill. App. 558; Miller v. Burch, 254 Ill. App. 387. Hence it is error to give an instruction on the theory that mere violation of a traffic regulation is negligence. Berg v. Michell, 196 Ill. App. 509.

This rule is necessarily violated by the unqualified reading to the jury of the charges in the complaint, since the pleader has assumed and flatly asserted that the defendant was negligent in these respects. If it becomes necessary, in a proper case, to inform the jury of "the charges in the complaint," the instruction should also inform the jury what is denied, and in this connection it should be made apparent to the jury that, if a factual charge of this type is proved by a preponderance of the evidence, the ...


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