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Larson v. Fell

FEBRUARY 16, 1965.

CLARA LARSON, PLAINTIFF-APPELLANT,

v.

CLARENCE M. FELL, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County; the Hon. JAMES H. COONEY, Judge, presiding. Judgment affirmed.

DAVIS, J.

The issues presented in this case are whether the allegations of wilful and wanton conduct were properly taken from the jury and whether the jury's finding for the defendant on the charge of negligence was contrary to the manifest weight of the evidence.

Count I of plaintiff's complaint alleged that Jefferson Street, a northerly and southerly public street, and South Street, an easterly and westerly public street, intersected within the City of Woodstock; and that plaintiff was a pedestrian walking in a southerly direction from the northeast to the southeast corner of said intersection using the crosswalk therein, in the exercise of ordinary care for her own safety.

It further charged that defendant, who was eastbound on South Street and was approaching, entering and crossing said intersection, carelessly and negligently operated and controlled his said automobile; failed and neglected to keep a reasonable lookout for pedestrians then and there upon the said South Street; operated said automobile at a speed which was greater than was reasonable and proper with regard to traffic conditions and the use of the highway, or so as to endanger the safety of some other person, contrary to and in violation of Section 49 of the Uniform Act Regulating Traffic on Highways; or failed and neglected to yield the right of way to a pedestrian crossing the roadway at a crosswalk at an intersection where traffic control signals were not in place, by slowing down or stopping if need be to so yield the right of way, contrary to and in violation of Section 74 of the Uniform Act Regulating Traffic on Highways.

Count II of plaintiff's complaint charged, mutatis mutandis, that wilful and wanton conduct of defendant caused the plaintiff's injuries.

Defendant's answer denied that plaintiff was in the exercise of ordinary care and was not guilty of wilful and wanton conduct for her own safety, and denied that defendant was guilty of either negligence or wilful and wanton conduct while so operating his automobile.

Four witnesses, including plaintiff and defendant, testified on plaintiff's behalf pertinent to these issues. Defendant also testified on his own behalf. Don J. Liston, a police officer, who arrived at the scene of the accident after the plaintiff had been taken to the hospital, stated that the rear half of defendant's car came to a stop in the north-south crosswalk in the eastbound lane of traffic on South Street, and that the grille on the left front side of the car was damaged.

The plaintiff, who was 79 years old at the time of the trial, testified that on the day of the accident she had been to the National Tea Store and was walking south on Jefferson Street toward its intersection with South Street. She was carrying a shopping bag in one hand, a striped umbrella in the other; and that it was raining or misting and visibility was fair, when she stopped at the northeast corner of said intersection.

While standing on the curb, she looked to the east and to the west for traffic. She could see a block to the east and saw the Dean Street stoplights one block to the west. She saw no traffic from the east and none from the west between Dean and Jefferson Streets, and none on Jefferson Street to the south. She then proceeded to cross the street to the south at a normal speed and did not again look to the east or west. When about one-half way across the east lane of traffic on South Street and while walking in the crosswalk area, plaintiff was struck by defendant's car. She did not see defendant's car or hear the sound of a horn before the impact.

Margaret Burmeister saw plaintiff standing on the curb at the northeast corner of this intersection just before the accident. She was driving north on Jefferson Street and brought her car to a stop in obedience to the stop sign at the southeast corner of this intersection. She recognized plaintiff, watched her as she crossed the street, and saw her look to the east and west before crossing the street in the crosswalk area. This witness did not see defendant's car until it struck the plaintiff and was not certain whether his car lights were on or off. She did not remember whether the lights on her car were on, although she did remember that the windshield wipers were in operation. Mrs. Burmeister was the first person to reach the defendant after the accident.

The defendant was called as a witness by plaintiff under section 60 of the Civil Practice Act. On the date in question, he left work at 3:30 p.m. and arrived at the stoplights at the intersection of Dean Street and South Street at about 3:55 p.m. He then drove east on South Street toward its intersection with Jefferson Street.

The weather was foggy and dark, streetlights were on, and some cars were driving with, and some without, lights. The windshield wipers on defendant's car were in operation and visibility was fair. The defendant, whose car was the first at the stoplight, could see about one and a half blocks east on South Street. A car was behind defendant at the stoplight and a car, travelling westerly, was stopped at the east stoplight on South Street.

After the light changed, defendant proceeded easterly in the east traffic lane on South Street. When about one half block from the Jefferson-South Street intersection, a car, which was travelling north on Jefferson Street, proceeded through the intersection. Defendant saw plaintiff when he was about four or five car lengths from the intersection. She was then starting into the street from the northeast curb. He then applied his brakes lightly.

Just before this, a car which had been travelling south on Jefferson Street, turned west on South Street and passed defendant, and a car travelling north on Jefferson Street came to a stop at the stop sign at the southeast corner of South Street. Defendant did not see plaintiff as she walked across the street until she was between the north curb and the center of South Street. Defendant's car was then approaching the intersection, at a speed of 15 to 20 miles per hour, and plaintiff was walking south in the crosswalk area about 4 feet north of the center of South Street. Defendant never sounded his horn, but did then apply his brakes, with force. His car was new and in good mechanical condition. He swerved it a little to the south ...


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