Appeal from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding. Affirmed.
The plaintiff, John Wrighthouse, seeks to reverse a judgment entered on a jury verdict in favor of the defendant, William Howard Brown, in an action for personal injuries tried in the Circuit Court of Macon County. Defendant cross-appeals and asks a reversal of the judgment entered against him on his counterclaim for property damage.
On April 21, 1962, the defendant was driving a farm tractor on a blacktop road in Macon County. He was pulling a plow behind the tractor. It was dusk or dark, and the defendant was using lights on his tractor. The defendant had a white light on the back of the tractor but had no light or reflector on the plow. The plow was 7 1/2 to 8 feet wide and extended back from the tractor about six feet. He was traveling about 20 miles per hour in a southerly direction.
At the place where the collision occurred the road was two lane, level, straight and between 18 to 20 feet wide. On the west side of the road there was a shoulder of sod and dirt about 9 feet wide.
Also proceeding in a southerly direction on this road was the plaintiff. He was driving a Plymouth automobile in good mechanical condition, with his headlights on dim or low beam. This car was traveling about 45-50 miles per hour when the plaintiff noticed a white light in front of him which he said looked like a one-eyed car coming toward him. When the plaintiff saw the light, he took his foot off his accelerator and began to slow down. As the plaintiff got closer to the light, he observed that it was on his side of the road. He switched his lights from dim to bright and it was then that he saw the plow 10 feet ahead of him in his lane. Plaintiff attempted to use his brakes but a collision occurred between the car and the plow. In the collision, the plaintiff sustained serious injuries and the automobile and the plow were damaged.
Plaintiff relies upon four contentions for reversal of the judgment of the trial court. He claims that the court erred in giving defendant's instructions Numbers 8 and 10A, erred in unfairly limiting plaintiff's argument, and also that the verdict and judgment are against the manifest weight of the evidence.
Defendant contends that the court erroneously gave plaintiff's instruction Number 9 and that the verdict against him on the counterclaim should be reversed.
Instruction number 8, offered by the defendant, was as follows:
"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
"`No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; . . . and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.'
"If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent or contributorily negligent before and at the time of the occurrence."
It is contended that there is no evidence that plaintiff was driving at a speed greater than was reasonable and proper under the facts and circumstances. Plaintiff also urges that the uncontroverted evidence shows that plaintiff decreased his speed in order to avoid a collision, and that the instruction could only confuse and mislead the jury since the defendant was operating the tractor and plow on the highway without proper lights.
[1-6] We cannot agree with the plaintiff's contention. Rather, we believe that the failure to give this instruction would have constituted reversible error. "It is elementary that every party has the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the jury with substantial accuracy so that it may not be misled to the prejudice of the party (citing cases). He has the right to have the jury instructed upon his theories of recovery or defense (citing cases). Failure to give a party these rights which are tantamount to a fair and just trial, whenever the case is close upon its facts or the evidence conflicting, and the failure is material, requires that the verdict be set aside, the judgment reversed and the cause remanded for new trial." Sims v. Chicago Transit Authority, 7 Ill. App.2d 21, 29, 30, 129 N.E.2d 23. Each party is entitled to have the court instruct the jury on his theory of the case, provided that there is an evidentiary basis for the instruction. "All that is required in order to justify the giving of an instruction is that there is some evidence in the record to support the theory set out in the instruction." Biggerstaff v. New York, C. & St. L.R. Co., 13 Ill. App.2d 85, 94, 141 N.E.2d 72. "The law is well settled that each party to a cause of action is entitled to direct and specific instructions embracing his theory of the facts where his evidence tends to prove such facts." Kirchner v. Kuhlman, 334 Ill. App. 339, 346, 79 N.E.2d 628. The issue of speed, as much as any other particular ...