Appeal from the Circuit Court of Cook County; the Hon. P.A.
SORRENTINO, Judge, presiding. Judgment affirmed in part, reversed
in part and remanded with directions.
MR. PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT. Rehearing denied June 7, 1966.
This appeal comes from a judgment entered March 13, 1964, in the Circuit Court of Cook County following a jury verdict which found for the plaintiff Stephanie Pellico in the sum of $10,000 and which found for the counter-plaintiff James Erickson in the sum of $15,000.
The complaint as amended charged the defendant Earl Jackson with the wilful and wanton, careless and improper operation of his automobile which, it is alleged, resulted in an automobile accident in which the plaintiffs Frank J. Pellico and his wife, Stephanie, were injured. The plaintiffs alleged that they exercised due care for their own safety.
Other parties brought in as defendants in this action were George Boese and Sam Kleveno, operators of a tavern known as The Ragdoll Tavern and the Oak Park National Bank as trustee of a land trust which held title to the property on which the Ragdoll Tavern was located. Other party defendants were Shirley Oddo, the operator of a tavern known as Oddo's Restaurant and Lounge, and Carmen and Frances Trimarco as owners of the property on which Oddo's Restaurant and Lounge was located. It was alleged that the defendant Earl Jackson was sold or given intoxicating liquor at each of the above mentioned taverns which contributed to intoxication on his part, and that this intoxication contributed to the accident in which the plaintiffs were injured.
In a separate count, an action was brought by the plaintiffs Frank and Stephanie Pellico against one Dan Engels doing business as Engels Rambler Sales, in which it was alleged that Earl Jackson was an employee of Engels Rambler Sales, and that the automobile which the defendant Jackson was driving was owned by Engels Rambler Sales and was being driven with the consent of the owner and in the course of Jackson's duties as an employee.
A counterclaim was filed in this suit by Earl Jackson and James Erickson, a passenger in the Jackson car. This counterclaim alleged that Erickson and Jackson were exercising due care for their own safety and that the accident was caused by the negligence of Frank J. Pellico.
The matter went to trial on March 4, 1964, on the issues as set forth in the complaint, countercomplaint and answers. The evidence brought out at the trial was as follows:
Frank J. Pellico, one of the original plaintiffs, testified that he was driving a 1959 Mercury automobile at about 4:45 p.m. the day of the accident, April 17, 1960. This was Easter Sunday, and Mr. and Mrs. Pellico were on their way back from his sister's house when the accident occurred. He stated that he remembered that the streets were wet and that there was a very light drizzle. According to this witness, the traffic was "very, very light."
This witness further testified, "I was traveling north on River Road near where it intersects with King Street; King Street comes in on River Road at about 3500 North. River Road was a four lane highway with double yellow lines running down the center. Two lanes go north, and the other two south. River Road has some windings, and turnings. Just prior to 3500 North there is a bend, or a curve, just before that intersection in River Road. . . .
"I was traveling in the extreme right-hand, outside, or east, lane. If there was a curb, which there is not, that would be the curb lane. The traffic was very light, and that was the proper lane to be driving in at that time. . . .
"We proceeded that way because I had to make a right turn when I reached Lawrence to go to my home. Lawrence is about 46 or 4700 North.
"The point of impact would be approximately 10 or 11 blocks south of Lawrence. My windshield wipers may have been on. It was drizzling lightly. My radio was not on.
"As we were driving north, I made a comment to my wife. I noticed two or three cars going south, in the opposite direction. When we approached this area where there was a large body of water on the left side of River Road, which I would say was about 50, or maybe 100, feet in length, covering the complete west side of the road, the one lane, and maybe just a foot over the center lane, next to the double line, which gave the southbound traffic plenty of room to go by. There were barricades in front of that water, warning motorists of the water ahead. I saw the barricade. It was directly in the lane that had the main body of water in it, the extreme west lane. . . . The barricade was in the southbound curb lane on River Road. There was a lane open on River Road for southbound traffic. . . . I saw cars coming in the southbound lane. . . .
"Prior to the accident, I saw the Jackson car approaching in that area. I was still proceeding in my east lane. I next saw the Jackson car when it was on my left side, after the impact. . . ."
On cross-examination Pellico said, "at this time, I do not recall whether I saw his car at any time within 50 feet of my car. . . . I did not apply the brakes to my automobile at any time prior to this occurrence. . . . I don't recall whether, or not, I had the windshield wipers on the car. There being a light drizzle, I may have had them on. . . . I don't remember now. It's possible that I may have had them on. My lights were not on. The day was overcast, but it was light enough so you did not need lights on." This witness further testified that he did not have his car radio on at the time of the accident.
The next witness to testify was Stephanie Pellico, the other original plaintiff in the lawsuit. Concerning the accident, she testified, "I remember the lane in which my husband was driving after he crossed Belmont Avenue. [It] was the lane on the far east side."
The following witness was one John Blaski. This witness stated that he was an amateur photographer. He took pictures of the scene of the accident shortly after it occurred. Blaski did not see the accident happen, but the photographs were taken before the automobiles involved were moved and even before the injured were taken away. This witness stated that he saw debris in the area of the Mercury, the Pellicos' car. "The debris was sheet metal and glass. I cannot be certain whether there was any other debris. As to its location ...