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Berg v. Collier

JUNE 4, 1965.

OTTO BERG, APPELLANT,

v.

STEVE COLLIER, APPELLEE.



Appeal from the Circuit Court of Effingham County; the Hon. JACK M. MICHAELREE, Judge, presiding. Judgment reversed and cause remanded for a new trial.

EBERSPACHER, P.J.

This is an appeal from a judgment entered on a verdict of a jury in favor of defendant in a negligence action for personal injuries.

Plaintiff had sought to recover for his personal injuries suffered as a result of his being thrown off a tractor which he was operating on a state highway, in a Northwesterly direction, when the tractor was struck from the rear by the motor vehicle driven by defendant who was traveling in the same direction. The original complaint contained no allegation explicitly charging excessive speed nor violation of any statutory provision concerning speed.

Plaintiff's uncontradicted testimony was that he was operating the tractor at a speed of 3 to 5 miles per hour when the tractor was struck; Defendant's uncontradicted testimony was that he was traveling 55 to 60 miles per hour when at the top of a hill to Plaintiff's right and first saw Plaintiff's tractor in a driveway 1,000 feet to a quarter of a mile ahead of him. Plaintiff contends that when he pulled on to the highway Defendant was not in sight, that he could see approximately a quarter of a mile to his right to the top of the hill. Defendant contends that he was 100 to 150 feet from plaintiff when plaintiff pulled on to the highway ahead of him and had traveled about 75 feet before the collision occurred, and that he had applied his brakes 75 to 100 feet before colliding with the tractor. Other evidence placed the point of the collision 100 to 120 feet from the point at which Plaintiff had pulled on to the highway. The day was clear and the pavement was dry; there were no skid marks on the pavement. Both the view of Plaintiff to the top of the hill and Defendant's view from the top of the hill, were unobstructed, even though the road made a gradual curve from the top of the hill to the point of the collision.

During the conference on jury instructions and after the "Issue" instruction (IPI 20.01), and the "Burden of Proof; instruction (IPI 21.02) neither of which contained any explicit reference to speed or to any portion of the statutes concerning speed, were marked given, Plaintiff tendered his instruction number 11. The instruction was in the form prescribed by IPI 60.01, and included the following portion of ch 95 1/2 sec 146 Ill Rev Stats 1963:

"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; or (2) is greater than the applicable maximum speed limit established by this section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; 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."

Upon tender of Plaintiff's instruction number 11, Defendant objected to the instruction on the grounds that, there was no evidence of excessive speed or failure to use proper speed. Plaintiff thereupon was granted leave to amend his complaint by adding a sub-paragraph charging that defendant "negligently and carelessly failed and omitted to reduce the speed of his motor vehicle when necessary to avoid colliding with other vehicles on the highway contrary to the provisions of section 146, chapter 95 1/2, Illinois Revised Statutes, 1963." Defendant moved to strike the amendment on the theory that the evidence did not support an allegation of speeding or the necessity of decreasing speed to avoid colliding with another vehicle on the road. The court granted Defendant's motion and struck the amendment, and finally refused the instruction.

In view of the evidence of the speed of the vehicles, and evidence of the distances traveled by both vehicles immediately before the collision, in an area where the view was unobstructed, we fail to see how the speed of plaintiff's vehicle could be immaterial, or how plaintiff could be said to have a fair trial if he were not allowed to plead breach of the applicable Statute referred to in his amendment. The amendment was proper, sec 46 par (3) Civil Practice Act, and the court erred in striking it. The fact that the amendment was offered after Plaintiff's issue and burden of proof instructions had been tendered but not yet been given, did not prevent the modification of those instructions to conform to the proper allegations of the amended complaint; and in view of the striking of the amendment, a tender of modifications of those instructions would have been an exercise of futility, since they could not have properly been modified to comply with an allegation that had been stricken.

In the conference on instructions, counsel for appellee objected to the tendered instructions stating: "There is no evidence of speeding in this particular development and second, the complaint filed does not allege the defendant was speeding or failed to use proper speed in the operation of his car — I object to giving such an instruction."

The court in refusing the instruction, stated: "There is no evidence in the trial in question of speed. I know there is a further provision in this particular statute but it still refers to speed."

It is true that there is no evidence that defendant exceeded the maximum speed limit, but as stated above, the speed at which defendant's vehicle was driven was material, even though it did not exceed the permissible maximum. Clearly there was evidence sufficient to warrant instructing on the statute with the possible exception of the following portion: "or (2) is greater than the applicable maximum speed limit established by this section or by a regulation or ordinance made pursuant to the provisions of this Article." It is difficult to comprehend a situation involving collision of moving vehicles in which the speed at which they were being driven is not a material factor in determining both due care and proper control. In view of the court's expressed misapprehension with reference to speed being a factor in this case, we can condone plaintiff's failure to tender a speed instruction properly modified to eliminate the quoted language.

It is here contended that the instruction, unless modified to exclude the above quoted language, was not proper and therefore, no error was committed in the court's refusing it. The objection to the instruction, however, is not based on that specific point. As has been frequently stated, the purpose of the conference on instructions and the requirement that specific objections be made is to provide as nearly as possible against error. Supreme Court Rule 25-1. Wright v. Callaghan, 50 Ill. App.2d 157, 200 N.E.2d 56; Greenlee v. John G. Shedd Aquarium, 31 Ill. App.2d 402, 176 N.E.2d 684. Nor can we say that the giving of the instruction in the form tendered would be held to be reversible error in this case. In the case of Sphatt v. Tully, 38 Ill. App.2d 229, 186 N.E.2d 670, the court held that even though some part of an instruction on a statute might be deemed surplusage, the instruction was properly given. In the case of Wrighthouse v. Brown, 52 Ill. App.2d 191, 201 N.E.2d 752, plaintiff motorist struck defendant's farm tractor traveling in the same direction. The court, at defendant's request, gave an instruction predicated upon section 146, in the following form:

"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 ...


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