Appeal from the Circuit Court of Bureau County; the Hon.
HOWARD C. RYAN, Judge, presiding. Judgment affirmed.
Rehearing denied February 3, 1965.
The plaintiff was injured when the motorcycle he was riding was struck by an automobile. He brought suit and obtained a verdict and judgment for $36,000. On this appeal defendant contends the trial court erred in refusing to give a special interrogatory on the due care of plaintiff, in refusing to grant a mistrial based on the alleged prejudicial conduct of plaintiff's attorney, and in refusing to grant a continuance at the request of defendant.
The tendered interrogatory was as follows:
"Was the plaintiff, at the time and immediately prior to the occurrence in question, in the exercise of due care and caution for his own safety?"
A special interrogatory must be given if the one tendered is upon an ultimate question of fact and in proper form. In Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 150 N.E. 276, the court said:
"A special interrogatory is not proper unless it relates to one of the ultimate facts upon which the rights of the parties directly depend, and unless some answer responsive thereto would be inconsistent with some general verdict that might be returned upon the issues in the case. . . . All reasonable presumptions will be entertained in favor of the general verdict while nothing will be presumed in aid of the special findings of fact. The inconsistency, to be controlling, must be irreconcilable so as to be incapable of being removed by any evidence admissible under the issues."
The interrogatory did not meet this latter test, for even though the plaintiff was not exercising due care and caution, at the time and immediately prior to the occurrence, this does not bar plaintiff's claim, unless his negligence proximately contributed to the injuries. No case from Illinois squarely on this point has been cited in the briefs, but it has come up in other states where the law is similar to Illinois. And this type of interrogatory has been held improper.
In Oliver v. Coffman, 112 Ind. App. 507, 45 N.E.2d 351, the court said of a similar interrogatory:
"Under the rule that all intendments, inferences, and presumptions, which may be drawn from any evidence admissible under the pleadings, support the general verdict, a general verdict for the plaintiff in a negligence action would not be overthrown by answers to interrogatories, that established negligence on the part of the plaintiff, unless such answers also established that negligence contributed to the injuries for which plaintiff sought to recover."
Similar results appear in Lowen v. Finnila, 15 Cal.2d 502, 102 P.2d 520 and Dunn v. Texas Coca Cola Bottling Co. (Tex Civ App), 84 S.W.2d 545. And in a later Texas case, entitled Cisco & N.E. Ry. Co. v. McCharen (Tex Civ App), 118 S.W.2d 844, the court said it would generally be error to submit contributory negligence as one issue since the negligence of the plaintiff is not even a defense unless it was a proximate cause. And in 65 CJS, Negligence, Section 304, at Page 1269, it is said:
". . . answers to interrogatories establishing plaintiff's negligence should also establish that such negligence contributed to his injuries in order to overthrow a general verdict for plaintiff. . . ."
The defendant cites several cases from Illinois, but in them the form of interrogatory contained both elements, which was not the case here.
Defendant contends his interrogatory related to one ultimate fact, and that if one was necessary on proximate cause, the plaintiff should have requested it or the court should have given it on his own motion. It is our opinion the court properly refused to give this interrogatory in its form, and that neither the court nor opposing counsel can ...