Appeal from the Circuit Court of Kendall county; the Hon.
CASSIUS POUST, Judge, presiding. Judgment affirmed.
JUSTICE MCNEAL DELIVERED THE OPINION OF THE COURT.
On December 26, 1952, between 3:30 and 4:00 o'clock P.M., plaintiff, Leo Ritter, was driving his 1950 Chrysler automobile east on Wallace Street toward its intersection with Ottawa Street in Joliet. Defendant, Andrew Hatteberg, was driving his 1952 Chrysler north on Ottawa Street. The day was clear and the pavements were dry. The automobiles collided at the intersection. Ritter sued Hatteberg and demanded judgment in the sum of $1,000 for property damage. Hatteberg answered and counterclaimed for $10,000 on account of personal injuries and property damage. The case was tried before a jury, which returned verdicts finding in favor of Hatteberg on the complaint and counterclaim and assessing his damages at $13,000. Judgments were entered on the verdicts. Ritter's post-trial motion was denied, provided Hatteberg filed a remittitur for $4,000. The remittitur was filed and judgment was entered in favor of Hatteberg for $9.000. Ritter appealed from the judgment entered against him and from the order denying his post-trial motion.
Appellant contends: that Hatteberg was guilty of contributory negligence as a matter of law and the verdict finding otherwise was against the manifest weight of the evidence; that prejudicial error was committed by injecting insurance into the case; and that the verdict was excessive and brought about by erroneous instructions. To determine whether the verdict was against the manifest weight of the evidence, it is necessary that we examine the evidence. The only witnesses of the occurrence were the occupants of the two cars, Mr. and Mrs. Hatteberg and Leo Ritter.
Andrew Hatteberg testified that both streets were wide enough for traffic to proceed in either direction with cars parked on both sides. There were no traffic control signals at the intersection. As he drove north on Ottawa, he was six or eight feet east of the center of the street, and as he approached Wallace he was going 20 to 25 miles an hour. The visibility to his left was good. He saw no cars parked along either street near the intersection. He figured the intersection was clear. Mrs. Hatteberg was riding in the front seat. As she hollered "look out," the impact occurred. Hatteberg's car was just past the center so that the front of the car was in the northeast quarter of the intersection and the Ritter car was just a little north of the center of the intersection at the time of the impact. Ritter's right front fender hit Hatteberg's car on the left side in front of the front door, and spun it around "like a pinwheel." The car rolled southerly into the southeast quarter of the intersection and stopped. Ritter's car came to rest nearly half a block beyond the intersection, slanting southeast across the south side of Wallace Street.
Mrs. Hatteberg testified that they had been northbound on Ottawa Street one block before the accident and had traveled about 25 miles an hour. As they approached the corner they didn't see anything. She didn't see any cars parked along the west side of Ottawa Street as they approached Wallace, nor any cars parked west of the intersection. They entered the intersection first. When they were near the center of the intersection she saw the other car to her left, just coming over the sidewalk line. Before she could finish saying look out, the car struck them. It came suddenly roughly around 35 miles an hour, north of the center line, and struck their car on the left side, the front and the hood. After the impact Ritter's car was about a half block from the intersection. The Hatteberg car had been swung around and was heading south on the southeast corner. The left door flew open and Hatteberg was lying in the street. Mr. and Mrs. Hatteberg were taken to the hospital and a doctor took care of a cut over her eye. They went to the garage where their car had been hauled. Some men took them home and helped her husband into the house. While Mr. Hatteberg was calling the doctor and the insurance company, he about passed out.
Leo Ritter testified that he had visited a sick friend on Wallace Street about two blocks west of Ottawa. He drove east on Wallace at not over 25 miles an hour. Near the southwest corner of the intersection there was an ice house, and cars were parked along Wallace and also along Ottawa on the southwest corner. At the trial he couldn't tell how many cars were parked on Wallace, but admitted he said "about seven" when a pre-trial deposition was taken. He was on the right side of the center line of Wallace Street approaching Ottawa. He looked to the left and didn't see any cars and then as he proceeded he glanced to the right and kept going through Ottawa Street. Then from glancing to the left back to the right he saw the Hatteberg car was on top of him, about 30 feet from him. He was two-thirds across Ottawa and in the southeast corner when his car was hit on the right front fender by the left front fender of the Hatteberg car. The impact forced his head through the windshield and his shoulder against the dashboard. Although he doesn't recall anything after that until he woke up in the hospital where he received emergency treatment, he stated that his car stopped about 20 feet from the point of impact. On cross examination he testified that he looked to his right when he was 10, 15 or 5 feet from the intersection; and also that he didn't look to the right until he was entering the intersection. When the question: "Do you testify that you didn't see the Hatteberg automobile at any time?" was put to him, he refused to answer under the Fifth Amendment and protested that the question had been asked three times. The Court directed him to answer the question and Ritter replied: "Yes."
In support of his contention that Hatteberg was guilty of contributory negligence as a matter of law, appellant cites: Kirchoff v. Van Scoy, 301 Ill. App. 366, and Wodecki v. Harold M. Pitman Co., 286 Ill. App. 610. In the cases cited the plaintiffs testified affirmatively that they did not look toward the direction from which defendants were approaching the intersection until the cars were about to collide, thereby negating any possibility that they were keeping a proper lookout or exercising due care. In the instant case Hatteberg testified that his visibility to the left was good, that he observed no cars parked along Ottawa Street south of the intersection on either side of the street, and none along Wallace Street. This testimony could have indicated to the jury that Hatteberg did look to his left and in the direction from which Ritter approached the intersection, otherwise Hatteberg could not have made the observations mentioned. Mrs. Hatteberg corroborated these observations and testified that they entered the intersection first. Considered in its most favorable aspect, there was evidence upon which the jury could have concluded that Hatteberg was driving at a reasonable rate of speed, keeping a proper lookout, and exercising due care.
[1-3] The question of contributory negligence is one which is preeminently a fact for the consideration of a jury. Blumb v. Getz, 366 Ill. 273, 277. The question of due care is always a question of fact to be submitted to a jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care. Thomas v. Buchanan, 357 Ill. 270, 278. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. Ziraldo v. W.J. Lynch Co., 365 Ill. 197, 199; McManaman v. Johns-Manville Corp., 400 Ill. 423, 430. We are of the opinion that there was nothing in the evidence introduced by Hatteberg, standing alone and considered as true, together with the inferences which may legitimately be drawn therefrom, which would have warranted the trial court in finding as a matter of law that Hatteberg was not in the exercise of due care or was guilty of contributory negligence; and that these were proper questions for the jury to decide under all the facts and circumstances in this case.
[4-7] The evidence pertaining to the speed of Ritter's car, first entry into the intersection, point of impact, the distance his car traveled after the collision, as well as the existence of parked cars to obstruct the view near the intersection, was conflicting. Where the evidence is conflicting, it is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based upon conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence. To be contrary to the manifest weight of the evidence an opposite conclusion must be clearly evident. Veselich v. Lichtsinn, 11 Ill. App.2d 372, 382. The evidence tended to show that Hatteberg was in the exercise of due care; that he was in the intersection when Ritter was at the crosswalk west of the intersection; that Ritter was traveling east in a westbound lane at a speed so much greater than the Hatteberg car that the impact or momentum of the Ritter car turned the Hatteberg car around and moved it in the opposite direction and carried his own car about half a block beyond the point of collision; that Ritter failed to keep a proper lookout for traffic which had entered the intersection from his right; and that his negligence was the proximate cause of the collision. An examination of all the evidence leads us to conclude that the judgment is not against the manifest weight of the evidence.
Appellant urges that prejudicial error was committed by injecting insurance into the case. In relating what took place shortly after the accident, Mrs. Hatteberg said that three young men from the garage helped her husband home and that she found a chair for him and "he sat down and because he had been told to call the doctor when he got home and the insurance company, and that is what he did, and while he was doing that he about passed out." There was no objection and this reference to insurance was not ruled upon by the trial court and cannot be considered on review by this court.
In the additional abstract it appears that on December 31, 1952, Ritter signed a statement in which he said: that he stopped his car about 120 feet east of the intersection; that the other car stopped close to the point of impact, headed south; and that he did not see the other car either before it hit or until he got out of his car. In his deposition taken on March 24, 1956, when asked if he recalled talking to an attorney about the accident, Ritter mentioned Hartford Insurance, and he denied ever stating that his car traveled 120 feet beyond the intersection or that he didn't see the Hatteberg car before the collision.
At the trial, after Ritter had stated on cross examination that his car went only 20 feet after the impact, Hatteberg's counsel requested a conference with the court out of the presence of the jury. The court and opposing counsel were apprised of Ritter's tendency to mention insurance. The court said that Ritter knew better than to bring out insurance. His attorney questioned the extent of his client's knowledge, but stated that he had been cautioned and that as far as he was concerned, Hatteberg's attorney was going to proceed at his own peril.
On further cross examination Ritter had difficulty remembering whether he made the statement. He admitted that his signature was on the document, but when asked if his signature was on each and every page, he replied: "That's right. I think it is blackmail because this was recorded by it would be a Hartford Insurance man. I think it is blackmail." His attorney promptly moved to withdraw a juror and to declare a mistrial.
There is no indication in the record that the Hartford Company carried insurance on Ritter's car. It is unlikely that an insured would describe the action of his own carrier in the investigation of an accident in which he was involved as blackmail. Obviously the Hartford Insurance man was investigating the accident because that company carried insurance on the Hatteberg car. Ritter's claim or defense against the ...