Appeal from the Circuit Court of Cook county; the Hon. JOHN E.
PAVLIK, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
This is a personal injury suit growing out of injuries sustained by a pedestrian struck by a streetcar in an intersection controlled by four automatic signal traffic lights. The jury returned a verdict in favor of defendant. The trial court overruled plaintiff's motion for a new trial and entered judgment on the verdict. Plaintiff has appealed.
Plaintiff's husband, Joseph Handell, joined her in this suit, claiming damages for loss of services and medical expenses, and is also a party to this appeal, but we hereafter use "plaintiff" to refer solely to Geneva Handell.
Plaintiff was employed as a checker in the National Tea Store at 79th Street and Damen Avenue, Chicago. On the morning of May 29, 1954, she alighted from the front end of a southbound State Street streetcar onto a safety island at 79th Street. She intended to board another streetcar at the northeast corner that would take her west on 79th Street to Damen Avenue. As she was crossing east across State Street, she was struck by defendant's northbound streetcar. She was severely injured and suffered permanent injuries.
State Street runs north and south and 79th Street extends east and west. The safety island, which was sixty-four feet long, was forty feet north of the unmarked crosswalk on the north side of State Street. From the north curb of 79th Street to the south end of the safety island was fifty-two feet and five inches. Included in these dimensions was the unmarked crosswalk of twelve feet five inches. From curb to curb 79th Street is forty-two feet and seven inches wide. There is a switch track which begins near the south end of the safety island and proceeds south on State Street and then west on 79th Street.
There is a direct conflict in the evidence as to whether plaintiff was struck in an unmarked crosswalk or at a place forty or more feet north of the crosswalk; and whether, at the time, the lights controlling traffic at the intersection were red for north and south traffic. The grounds of appeal urged by plaintiff are that the court erred in its ruling in respect to giving and refusing instructions.
Plaintiff testified as follows: She stayed on the safety island with other passengers until the streetcar she alighted from turned right to go west on 79th Street. She observed the light was green for east and west traffic; and that the streetcar on the northeast corner was then motionless. The first rail of the northbound track was about four or five feet from her. She was in the crosswalk and when she first saw the streetcar that struck her it was right on top of her and she was struck while in the middle of the northbound track. She did not hear any gong or warning of any kind.
A witness for plaintiff testified as follows: He also got off the State Street streetcar and alighted at the safety island to wait for the next State Street car going south. After the State Street streetcar turned west, plaintiff walked east crossing State Street. "She was in the south traffic lane in the walkway." The light was then green for traffic going east and west and was red for north and south traffic. He said the streetcar came through the red light and struck her while in the center of the northbound rails. The streetcar didn't sound any gong and he did not hear any application of brakes.
On cross examination this witness testified that he got off the front end of the streetcar and walked north fifteen or twenty feet on the safety island to wait for the next car so he could get on the rear of the car. After plaintiff was struck he said she fell right at his feet in the southbound tracks.
Defendant's motorman testified that he stopped the car at 79th Street and proceeded north with a green light; that when he was halfway across 79th Street a streetcar on the southbound track proceeded around the curb going west on 79th Street; that when he was about twenty-five feet north of the north curb line of 79th Street, "I noticed some people on the island on the north of the intersection, and I saw one lady first a couple of them came out, stepped out and then they stepped back again, and another woman went right out across with her head down, into my streetcar." That he sounded his gong from the time he crossed the intersection until plaintiff was struck; that when he first saw plaintiff step out from a group of ten or twelve people on the island she was about fifteen feet away; that he was then going five miles an hour at the time and the car went five feet after the occurrence, and that he came in contact with plaintiff "right alongside the motorman" about five feet back on the left side.
Another witness for defendant testified that he was sitting on the left hand side about the fourth seat from the front of the streetcar going north on State Street; that the light was green when the car entered 79th Street; that he saw plaintiff on the island; and that "she was stepping on the tracks, you know, and just as the streetcar was on the north side of 79th Street, she tried to cross and the streetcar struck her."
Plaintiff contends it was reversible error to give defendant's instruction 15 embodying paragraphs (a) and (d) of section 75 of the Uniform Traffic Act, Ill. Rev. Stat. 1959, Ch. 95 1/2, § 172; plaintiff argues that section 75 has no application to an intersection where traffic is controlled by traffic signals and it was prejudicial error for the trial court to tell the jury that section 75 was in full force and effect at the time and place of the accident. Defendant's instruction 15 states:
"The court instructs the jury that there was in full force and effect at the time and place of the accident in question in this case, a certain statute of the State of Illinois which provided, among other things, as follows:
(a) `Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection, shall yield the ...