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Smith v. City of Rock Island

SEPTEMBER 16, 1959.

MAE SMITH, PLAINTIFF-APPELLANT,

v.

CITY OF ROCK ISLAND, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Rock Island county; the Hon. GEORGE O. HEBEL, Judge, presiding. Reversed and remanded.

PRESIDING JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT. Rehearing denied October 13, 1959.

This action was commenced to recover damages for personal injuries sustained by plaintiff, Mae Smith, in an automobile collision which occurred on the night of January 3, 1957, at the intersection of Ninth Street and Thirty-first Avenue in Rock Island, Illinois. The jury returned a verdict finding the defendant, City of Rock Island, not guilty and judgment was entered thereon, from which judgment plaintiff appeals.

Ninth Street in the City of Rock Island is a north and south street of black construction, 24 feet in width. Thirty-first Avenue is an east and west four lane concrete street, 40 feet in width. On the night in question, Ninth Street was and for some twenty years prior thereto had been a through street on which there was maintained by the defendant, City of Rock Island, a stop sign at the northeast corner of the intersection facing traffic going west on Thirty-first Avenue and entering Ninth Street. About 8:40 o'clock p.m. on the night of January 3, 1957, the plaintiff, Mae Smith, was driving west on Thirty-first Avenue approaching Ninth Street. The night was dark and murky. The pavement was dry, the wind was blowing and the weather was threatening. Plaintiff testified that while proceeding west on Thirty-first Avenue, she was looking ahead and driving approximately twenty-five miles per hour with her headlights on; that she noticed that she was approaching an intersection but that it appeared to her to be a side street and that she did not see the stop sign at the northeast corner of the intersection and had no knowledge that one was there; that when she was four or five car lengths from the intersection she glanced to the left and then to the right, and seeing no vehicles she proceeded into the intersection and when about half way through said intersection her car was struck violently on the left side by a car going north on Ninth Street resulting in her injuries. Plaintiff contends that the proximate cause of the collision was the negligence of the City of Rock Island in failing to maintain a proper and legal stop sign at said intersection.

Plaintiff contends that the stop sign maintained by the defendant, City of Rock Island, at said intersection did not comply with the legal requirements prescribed in the State Manual and Specifications provided by Sec. 127, Chap. 95 1/2, Ill. Rev. Stat., 1957, in that it was not reflectorized so that it could be seen at night; it had not been cleaned and inspected for fifteen years; its dimensions are 18 x 18 inches whereas it should have been 24 x 24 inches; it was 4 feet 9 inches from the ground whereas it should have been 7 feet from the ground; it was located 4 feet 8 inches north of the north curb on Thirty-first Avenue whereas it should have been located within 1 to 3 feet from said north curb, and it was located 20 feet 10 inches east of the east curb of Ninth Street whereas it should have been 15 feet east. The stop sign was characterized by several witnesses as being black, never very clean, old, in need of paint, weathered out, inconspicuous and out of the range of headlights approaching from the east.

The serious nature of plaintiff's injuries, which included the loss of a leg, was undisputed but the vital issues of defendant's alleged negligence and of plaintiff's due care were seriously contested in the trial court as well as on this appeal. Defendant asserts that it is not liable as it was operating in a governmental function and, therefore, immune from liability. Defendant has filed no cross appeal or taken an appeal from the trial court's adverse ruling on this point and this question is now not before us for decision. Plaintiff contends that the trial court committed reversible error in certain of its rulings on the evidence and in giving instructions on behalf of the defendant.

One of the important elements for the plaintiff to prove was that she was in the exercise of due care and caution for her own safety at and immediately prior to the collision in question. In this respect, plaintiff testified that she was driving at a moderate rate of speed, looking ahead and that she was four or five car lengths from the intersection when she looked to the left and then to the right and seeing no cars approaching she proceeded into the intersection. The plaintiff on cross examination was asked if the following questions were asked and whether she made the following answers at the time her discovery deposition was taken:

"Q. Do you remember this question and answer? Question: Mrs. Smith, at that time isn't it a fact that you stated you were looking straight ahead and you just glanced at the intersection and continued straight on without doing anything about your motor vehicle and the next thing you knew you were in the intersection and saw a car to your left, eight or ten feet? Answer: Yes."

"Q. That is correct is it not, that is what happened? A. Yes."

The plaintiff on redirect examination by her own counsel attempted to testify as to other matters covering the same subject in her deposition and the defendant objected on the ground that the matter was not important and that a deposition could be used only for impeachment. The trial court sustained these objections. The questions which were asked and the answers given by the plaintiff in her deposition sought to be introduced by the plaintiff were as follows:

"Q. Several times, Mrs. Smith, you have been asked whether you looked, you said you glanced; would you tell me what you mean by the word glanced, and what you mean by the word looked?

"A. I don't think you have time when you are driving to take a good long look, you glance quickly one way and the other.

"Q. Sort of bat your eyes side to side more or less?

"A. I think more than that. I was a stranger on that street and I was really looking, because I was looking for a road to get back over to go up 18th Avenue."

Plaintiff contends that the trial court committed reversible error in not permitting her to be interrogated about the above statements made in her deposition after she had been cross examined about similar statements made in the deposition. Stated in its simplest terms, the question is: If a witness or party is cross examined about certain statements made in their deposition, can he or she then be asked about other statements made in the same deposition covering the same subject matter on redirect examination? This question has been considered and discussed recently in ...


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