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Arbogast v. Fedorchak

NOVEMBER 14, 1963.

EDITH ARBOGAST, PLAINTIFF-APPELLEE,

v.

JOHN FEDORCHAK AND COMMUNITY COACH COMPANY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding. Affirmed in part and reversed in part.

HOFFMAN, JUSTICE.

Rehearing denied December 7, 1963.

The plaintiff herein brought an action against the defendants John Fedorchak and Community Coach Company to recover damages for personal injuries sustained by her when she was struck by defendant Fedorchak's automobile after leaving one of the coach company's buses. The jury found both defendants negligent and assessed plaintiff's damages. Both defendants appeal, and both seek a reversal on the law, the defendant Fedorchak claiming that plaintiff did not keep a proper lookout for her own safety, and the defendant coach company arguing that its action could not be the proximate cause of plaintiff's injuries.

The plaintiff was a middle-aged woman who lived at the northwest corner of the intersection of Twenty-second and Benton Streets in Granite City. Benton Street is a one-way street carrying northbound traffic only, along which the defendant coach company runs its buses. There was a regular bus stop at the southeast corner of the intersection.

On the day in question, plaintiff stood inside of her front door waiting for one of the buses to appear. It was cold out, and she did not wish to stand outside on the corner. When she saw the bus enter the intersection from the south, she went out on the porch and flagged the bus driver. The driver drove across the intersection and stopped at the northeast corner of the intersection, along the curb on the east side of Benton Street, in order to permit plaintiff to board the bus.

Plaintiff walked down her steps, crossed a walkway between the sidewalk in front of her house and the curb on Benton Street, and then went from west to east across Benton Street, going around in front of the bus. She got on the bus at the front door, but discovered she had forgotten her money. She then got off the bus, went around in front of it and started to cross back to the west side of Benton Street towards her home. She said she had taken "several steps" beyond the bus, when defendant John Fedorchak, coming from the south on Benton Street, struck her.

The sole and only question raised by defendant Fedorchak is whether or not plaintiff is contributorily negligent as a matter of law for failing to keep a proper lookout for her own safety.

Crucial to the solution of this question, insofar as the facts are concerned, is the testimony of the various witnesses pertaining to exactly what plaintiff did as she left the bus to return across Benton Street towards her home. This testimony is as follows:

The plaintiff: "As I got back around the front of the bus I looked to my right and then looked to my left. I peeked out from in front of the bus. I did not see any traffic. I proceeded to go across the street, and I had taken several steps when I was hit. I was not rushing after I got off the bus . . . I was not running either. When I moved into the street I continued to look to my left. I did not see a car approaching from the left."

Melvin Arbogast, plaintiff's son: "When the accident happened I was on the second floor bedroom looking out of the window. . . . When she came around the front of the bus she first looked to the right, then to the left. At that time I did not see Fedorchak's car . . . As she started across the street I noticed a car that was in motion about 3 or 4 feet on the side of the bus. Its speed was approximately 25 miles an hour. . . . My mother proceeded about two steps into the street from the westerly side of the bus before she got hit."

John Fedorchak, defendant: "As I got to the intersection the bus began to move across it. The bus started across Twenty-second Street and pulled back to the curb across the intersection. I was behind it. When he pulled to the curb I started slowly around him. I watched the bus to see why he was stopping there as I knew there was no bus stop past Twenty-second Street. Then I pulled up slowly because I didn't know why the bus had stopped. As I proceeded forward the accident occurred. As I moved up along the side of the bus I was going four to five m.p.h. I didn't see the lady until I hit her. When I stopped my car after I hit her the front of my car was about even with the front of the bus. As I was passing alongside the bus my car was in the center of the street. I was traveling straight ahead."

Charles Jarman, the bus driver: "She told me she forgot her money and I told her that was all right, and before I could stop her she whirled around and ran back across the street. She went around the front of the bus and veered back to her left. . . . I could see her as she was going across in front of the bus. I just got a glimpse of the automobile, it happened so fast. As Mrs. Arbogast was moving in front of the bus she was not walking, she was running . . . She did not stop and look when she got to the left front of the bus. . . . The impact was behind, back of the front of the bus."

Charles Collins, a taxicab driver: "I was driving approximately one car length behind Fedorchak's car. . . . As I moved through the intersection the car in front of me was going not over thirteen, fourteen or fifteen miles an hour. . . . When the bus pulled to the curb and stopped it was parallel with the curb. When I first saw the lady she was running out in front of the left front end of the bus. At this time I was about two feet from the rear of the bus and the car in front of me had traveled a little over half of the length of the bus. When I first saw the lady my car was directly in the center of the street. The car in front of me was also directly in the center of the street. When I first saw the lady the front end of the car in front of me was about twelve feet from the lady. At this time the car in front of me was not traveling over ten miles per hour. She was running straight across the street. When I first saw her she was looking to the west. When she got about to the middle of the street she didn't stop running, but she just kind of jerked her head around and looked back toward the south. Then she started to run at an angle. . . . she was probably two or three feet north of the bus when she was hit."

To support his contention that plaintiff was contributorily negligent as a matter of law defendant Fedorchak cites numerous railroad cases to the effect that a person may not proceed into an obvious place of danger without looking, nor may such person look and not see what must be obvious. Some of these cases cited are the following: Greenwald v. Baltimore & O.R. Co., 332 Ill. 627, 632, 164 N.E. 142 (1928); De Bow v. Cleveland, C., C. & St. L.R. Co., 245 Ill. App. 158, 164 (1924) (4th Dist); Myhre v. Chicago City Ry. Co., 216 Ill. App. 128, 131 (1919) (1st Dist); Chicago, P. & St. L.R. Co. v. DeFreitas, 109 Ill. App. 104, 106 (1902) (3rd ...


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