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Brichacek v. Hampton

DECEMBER 9, 1964.




Appeal from the Superior Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Affirmed.


Rehearing denied December 30, 1964.

This appeal is taken from a judgment on the verdict entered in the Superior Court of Cook County in favor of Henry Brichacek and against Jon Hampton for the sum of $17,500. The only questions which are raised in this court are: 1st, that the judgment is against the manifest weight of the evidence; and 2nd, that the judgment of $17,500 is excessive and was the result of passion, prejudice or sympathy.

The only facts not in controversy are that the accident occurred on Saturday, June 16, 1962, at 8:40 a.m., at the intersection of Oakley Boulevard, which runs north and south, with Lake Street, which runs east and west, in the City of Chicago. Oakley Boulevard is 42 feet wide; Lake Street is 48 1/2 feet wide. The day was clear, with good visibility. The plaintiff was struck on his left side by the right front fender of defendant's car.

The other facts are sharply contested. The plaintiff, a mail carrier, 66 years of age, was engaged at the time of the accident in picking up and delivering mail. He used his private car that day and had parked it on the south side of Lake Street in the bus stop, "about even with the west curb line." He testified that he got out of his car and went across Lake Street to the northwest corner where there is a mailbox from which he was to have made a collection. He opened the box, found no mail, locked the box, looked at the traffic lights, which were green in his favor, glanced east and west, and saw no traffic coming, although there was a bus standing at the corner, going east, with a couple of cars behind it. He then proceeded across Lake Street on the green light. After he noticed the light was green he looked towards the left, or east, and saw nothing coming. After he had made a couple of steps into Lake Street he was hit on the left side and was thrown about 10 or 15 feet, landing about 8 or 10 feet west of the sidewalk. He further stated that "the impact itself occurred in relation to the west curb line where the imaginary pedestrian lines would be."

On cross-examination, the plaintiff admitted that in his deposition he had testified that his car was parked on the southwest corner of Lake and Oakley about 15 or 20 feet from the corner, with the front end of his car in the bus stop. On the southwest corner of the intersection of Lake and Oakley, there was a traffic-control signal about 5 or 6 feet west of the west curb of Oakley and west of the crosswalk. He also testified that the mailbox was on the west edge of the west crosswalk and that his car was west of that mailbox. He testified that he never saw the defendant's car at any time before the accident and that he was 6, 8 or 10 feet, or maybe two steps more, in Lake Street when he was struck by the car. The plaintiff testified:

As I was crossing the street, I centered my attention on the south of the direction I was walking.

Mr. Gerrard: Q. Now, will you answer my question, please. Did you at any time either look to your left or to your right from the moment you left that sidewalk until this occurrence took place?

A. I said as I crossed, I looked, and I didn't see anything —

Q. Will you please answer my question.

Mr. Reibman: Objection, Judge. He has answered it.

The Court: He said he didn't look to the right or left.

Mr. Gerrard: All right. May the record show that that is the answer?

The Court: That's what he said.

Mr. Reibman: He said he did look, and he didn't see it.

The Court: He said he was looking at the stop light. Go ahead.

That statement could be construed as meaning that the plaintiff had looked as he was crossing the street in spite of the interpretation placed on it by counsel for plaintiff and the court, neither of which could be controlling on the jury.

Hampton, the defendant and driver of the car, testified at the trial that he was driving west on Lake Street at about 15 to 23 miles an hour. He was in the center lane, 30 or 50 feet from the intersection, when he first noticed the traffic signals. At that time the light was amber and then changed to green in his favor. At that time the defendant first saw the plaintiff, and the time he first noticed him he continued to watch him. The plaintiff, when defendant first noticed him, was 5 or 6 feet south of the north curb line of Lake Street, going across Lake Street, and 10 to 15 feet from the west curb of Oakley. The defendant testified that the plaintiff was walking in a westerly direction ...

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