Appeal from the Superior Court of Cook County; the Hon. HARRY
G. HERSHENSON, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 18, 1965.
This is a wrongful death action, in which the plaintiff administrator appeals from a not guilty verdict and judgment, contending that the trial court erred in striking part of the complaint and in the giving and refusing of instructions.
The decedent, a 9-year-old boy, was fatally injured on August 19, 1957, while riding a bicycle which collided with a tractor-trailer in a street crossing. He was survived by his parents and a minor sister. An eyewitness and two post-occurrence witnesses testified for plaintiff, and the tractor driver testified for defendants.
Plaintiff's eyewitness, Emil Byke, testified that about 8:25 p.m., on the day of the occurrence and after he had purchased a newspaper at the northeast corner of 22nd and Western, he walked south to the north curb of 22nd Street, intending to proceed south across 22nd Street in the east crosswalk. The light was green for westbound traffic on 22nd Street. He heard a shout behind him, and as he turned he saw decedent riding a bicycle on the sidewalk of 22nd Street, going west toward Western. "His bicycle was moving as fast as a brisk walk, about 2 1/2 or 3 miles per hour. I saw the boy turn his head to the right and shout something to a boy who was behind him on a bicycle about 15, 20 or 25 feet. The bicycle then went off the sidewalk onto Western Avenue and the boy turned around and saw a vehicle in front of him which I saw at the same time. . . . [It] was a tractor-trailer. The boy kept moving forward with the bicycle, west on the crosswalk but he was going slow. He was having a hard time balancing the bicycle. He was zigzagging it. Around ten feet away from the curb, when he approached the vehicle he raised his left hand and all of a sudden the bicycle shot over to the right and he fell to the left and as soon as he hit the ground the front wheels of the tandem axle ran over the boy's head and boy's body. . . . Yes, the rear wheels of but the first axle. . . ." Byke heard no horn, and he and another person shouted "at the vehicle" and it "stopped approximately 50 feet beyond the boy going north on Western Avenue. . . . The tractor-trailer was making a right turn on Western Avenue, and was making a right, wide turn. . . . He was going east west on 22nd Street, and then he turned northbound on Western Avenue. . . . The speed of the trailer and tractor . . . was between five and ten miles per hour. I heard the tractor shifting gears as it was negotiating this turn. The traffic at this time was very light."
On cross-examination, he testified that the street lights were on and it was dusk. He did not notice a light on the bicycle "It didn't attract my attention." When the boy came off the sidewalk, "the tractor was north of the crosswalk on Western Avenue but not the trailer. The trailer was following the tractor around. The boy on the bicycle went into the intersection approximately 6 or 10 feet. . . . Yes, the tractor of the trailer was already beyond the crosswalk. Then he came forward and went right into the middle of the trailer. He was moving all the time. He had difficulty balancing it. I think that's why he was turning the wheel. I can't say if it was because of the bump or the slowness of the [bicycle]. When I heard him shout, at that moment I looked at what he was hollering at and I noticed the boy on the second bicycle behind him. This was right when he went off the curb. . . . When he came in contact with the trailer, he was about a foot off to the north of the crosswalk. When the tractor and trailer stopped, the back of the trailer was about 50 feet from the crosswalk." On redirect, he was asked, "Did it begin to turn northbound before the boy actually entered the crosswalk?" and he answered, "I can't say that. No."
Plaintiff's two post-occurrence witnesses were a fire lieutenant and a policeman. The fire lieutenant described the area, the location of decedent's body, and the tractor-trailer. The policeman testified that the defendant driver stated "that his right rear mirror was set too high and as he made his turn he was unable to see the boy on the bicycle." When cross-examined about the statement he attributed to the defendant driver, he said, "When I checked my written record there was no inclusion of this statement that I have testified to today."
The defendant driver testified that "following the accident I was questioned by certain police officers and made out a full report at the police station." He denied that he told the police officer that his rearview mirror on the right side was improperly adjusted. We note, here, that in response to plaintiff's interrogatory, "What was the height of the rearview mirror above the ground at the time of the occurrence in question?" defendants answered, "6 feet to the center."
At the conclusion of plaintiff's case, the trial court struck subparagraphs 5(b) and (c) and all of paragraph 6 of the complaint. Of paragraph 5, there remained subparagraphs (a) and (d), which charged that defendants "(a) carelessly and negligently maintained, drove, managed and operated said tractor and trailer," and "(d) carelessly and negligently failed to sound a reasonable warning with the horn of the said tractor and trailer when such warning was reasonably necessary to insure safe operation; contrary to and in violation of Section 115, of Article XV, of the Uniform Act Regulating Traffic on Highways, of the State of Illinois."
Plaintiff contends error, asserting that subparagraph 5(b) would have properly placed before the jury the issue of defendants' negligence in failing to keep a reasonably careful lookout; that subparagraph 5(c) would have placed in issue the defendants' violation of the Illinois statute providing that no vehicle may be turned from a direct course upon a highway unless such turn can be made with reasonable safety; and that paragraph 6 would have placed in issue the defendant West Shore's failure to adequately equip its vehicle or to provide a helper so as to enable its driver to observe conditions to the rear and to the right side of the truck.
Although we have carefully considered plaintiff's authorities to support his contentions as to the stricken paragraphs, we believe a discussion of them is unnecessary here, because we think the factual circumstances are dissimilar.
Subparagraphs (a) and (d) sufficiently presented to the jury the decisive issues in this case. Subparagraph 5(a) presented the over-all and ultimate issue of whether defendants carelessly and negligently maintained, drove, managed or operated the tractor and trailer prior to and at the time of the occurrence. This issue encompassed the more specific allegations of negligence contained in stricken subparagraphs (b) and (c). Subparagraph 5(d) presented the issue of whether the defendant driver had "failed to sound a reasonable warning with the horn." This was a proper question for the jury, because the witness, Emil Byke, testified he heard no horn, although he did hear the gears shift.
We find it was not error to strike subparagraphs 5(b) and (c). Plaintiff produced no evidence as to the specific conduct of the defendant truck driver prior to the occurrence, and no evidence which indicated that the truck driver had failed "to keep a reasonably careful lookout" or to give an appropriate visual signal before turning onto Western Avenue. Without sufficient factual basis, it was not improper to exclude these issues.
We next consider plaintiff's contention that the trial court improperly struck paragraph 6 of the complaint. This paragraph primarily alleged negligence in failing to equip the tractor with a rearview mirror, which would provide an adequate view of the driver's position to the rear of the right side of the vehicle, and in failing to have a helper to keep a lookout for traffic along the right side. The statutory provision relating to mirrors (Ill Rev Stats 1957, c 95 1/2, § 214) provides that motor vehicles which are so constructed or loaded as to obstruct the driver's view to the rear thereof, from the driver's position, "shall be equipped with a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of such vehicle." (Emphasis supplied.)
The record shows that the tractor was equipped with a rear view mirror, and there is no direct evidence as to how it was adjusted. The driver denies he told the police that it was improperly adjusted. As decedent rode into the side of defendants' trailer at a right angle to it, we fail to see how either the adjustment of the rearview mirror, or a helper, could have prevented the collision. There are no facts shown here to demonstrate a lack of due care by defendants. We find no error in striking paragraph 6 of the complaint, because the evidence does not support its allegations.
Plaintiff next contends that the court erred in giving defendants' instructions 3 and 5. These instructions are grounded on section 2 of the Wrongful Death ...