Appeal from the Circuit Court of Winnebago county; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
This action was brought by the plaintiff, Peter J. Simaitis, to recover damages for personal injuries he sustained as a result of a collision between the automobile in which he was riding as a passenger and an automobile driven by the defendant, Grace E. Thrash. The automobile in which plaintiff was riding was owned by him and being driven by his wife, Dorothy M. Simaitis.
Defendant filed an answer to the complaint and thereafter discovery depositions were taken of plaintiff's wife, plaintiff and defendant. Defendant then filed a motion for summary judgment based on evidence given in the discovery depositions. The court granted this motion and entered judgment against the plaintiff on the theory that plaintiff's wife was guilty of negligence as a matter of law and that such negligence was imputed to the plaintiff, and that plaintiff was guilty of contributory negligence. From that judgment plaintiff appeals.
Plaintiff contends that the question of contributory negligence of the plaintiff and the negligence of the driver of the plaintiff's car was for the jury and that the legal relationship between plaintiff and his wife was also a jury question, and that the court erred in granting the motion for summary judgment and entering judgment against plaintiff.
Defendant contends that the testimony of plaintiff and his wife given on their discovery depositions established as a matter of law that the plaintiff's wife, driver of plaintiff's automobile, was guilty of negligence which was imputed to the plaintiff and that plaintiff was guilty of contributory negligence.
The collision out of which this case arose occurred on March 3, 1958, in the City of Rockford, Illinois, in the intersection of Latham Street, which extends north and south, and River Bluff Boulevard, which extends east and west. The two streets are twenty-four feet in width and have a black top surface. The intersection is commonly referred to as an open intersection and there were no stop signs or other traffic controls at the intersection. The collision occurred in the afternoon while it was still daylight, the weather was clear and the streets were dry. The plaintiff was riding in the front seat on the right side of his 1953 Plymouth automobile which was being driven by his wife. Plaintiff's automobile was traveling north on Latham Street, and the automobile driven by the defendant was traveling west on River Bluff Boulevard.
It is necessary for a proper determination of this case to summarize the evidence given by plaintiff's wife, plaintiff and defendant in their discovery depositions.
Plaintiff's wife testified in her deposition that she was employed by J.L. Clark Mfg. Co., and on the day of the collision she had driven her husband's (plaintiff's) automobile to work and after work she drove to Chestnut and Madison Streets where she picked her husband up, and then drove to West High School where she picked up her daughter and a girl friend and then proceeded to the place of the collision intending to take her daughter's girl friend home and go to the market for groceries for the family.
Plaintiff's wife further testified as she traveled north on Latham Street approaching its intersection with River Bluff Boulevard, she was driving about twenty miles per hour and she slowed down as she got closer to the intersection and entered it. She testified that she looked east down River Bluff Boulevard when they reached the south side of River Bluff Boulevard, and from that point she could see about one-half block toward the east and did not see any cars approaching the intersection. Plaintiff's wife further testified that defendant's car was about a car length away when she first saw it and that it looked like it was traveling pretty fast and that she saw it instantly before the impact and that she was across the center of the intersection at the time of impact.
Plaintiff's wife further testified that the defendant's car hit the plaintiff's car in the right rear, and that plaintiff's car was in the northeast quarter of the intersection at the time of impact and that plaintiff's car was turned completely around and came to a stop up against the northeast corner of the intersection.
Plaintiff, Peter J. Simaitis, in his deposition testified that he looked to the east when the car in which he was riding was about fifty feet south of the south curb of River Bluff Boulevard and that he did not see any car approaching from the east; that his wife, who was driving his car, slowed down before entering the intersection and that he did not see the defendant's car until it was about two car lengths away and that at that time his car was traveling very slowly across the intersection and he told his wife to "step on it." He then stated that she did "step on it" but that his car was an old one and did not "take off" like it should. Plaintiff also testified that he attempted to attract the attention of the defendant by waiving his arms to get her to slow down but that defendant showed no indication of slowing down and did not slow down.
Defendant, in her discovery deposition, stated that she was driving a 1951 Chevrolet automobile west on River Bluff Boulevard in the right hand lane of traffic at a speed of twenty or twenty-five miles per hour. She stated that this was the speed of her car as she approached the intersection of River Bluff Boulevard and Latham Street. She stated that when she first saw the car in which plaintiff was riding it was traveling north on Latham Street and hadn't ...