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Borries v. Z. Frank

JULY 11, 1966.

MARY BORRIES, PLAINTIFF-APPELLANT,

v.

Z. FRANK, INCORPORATED, AND RONALD SCHULTZ, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. IRVIN N. COHEN, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied August 1, 1966.

This is a personal injury case, in which the jury returned a $30,000 general verdict for plaintiff. The jury also returned a special interrogatory, which found that plaintiff was "guilty of negligence which proximately contributed to cause the occurrence in question." The trial court denied plaintiff's motion to set aside the answer to the special interrogatory and entered judgment for defendants. Plaintiff appeals.

On September 27, 1960, at approximately 4:30 to 5:00 p.m., plaintiff, a pedestrian, was struck by the rear end of a car, which backed into her. The scene of the occurrence was mid-block on Bryn Mawr Avenue, a busy thoroughfare in Chicago. She sustained a hip fracture and was hospitalized. She was treated by various doctors, was in a walker for 6 1/2 months and on crutches until August 1961. At the time of her injury, plaintiff was employed as a waitress. She was unable to resume work until July 1, 1962, when she commenced working as a desk clerk in a motel.

Plaintiff's determinative contention is that the trial court erred in failing to set aside the special finding, the answer to the special interrogatory, and enter judgment for plaintiff on the general verdict, as no evidence was offered to refute plaintiff's evidence, or, in the alternative, to grant plaintiff a new trial, as the special finding was against the manifest weight of the evidence.

Defendants contend that the purpose of the special interrogatory is to test the general verdict and "to complain that the two `verdicts' were inconsistent is simply to say that the special interrogatory served its function as provided by the statutory provision. The point is well illustrated by the court's decision in the case of Wise v. Wise, 22 Ill. App.2d 54-58, 159 N.E.2d 500-502. The court there said, in answer to the same argument made here by the plaintiff:

"The statute expressly provides that the answer to the special interrogatory controls the general verdict. Ill Rev St, Ch 110, Sec 65. This statute would be completely nullified if a court disregarded its mandate and ordered a new trial on the ground the inconsistency showed `confusion'."

"In short, it is pointless to be arguing about the inconsistency between the jury's special finding and the general verdict, since the possibility of such a result is clearly contemplated by the statutory provision which authorizes the use of such special interrogatories. See 35 ILP Trial, Sec 331-339."

The occurrence witnesses were plaintiff, an eyewitness named Mildred Koontz, and defendant Schultz. Plaintiff's testimony shows that she lived in the Bryn Mawr Hotel on the southwest corner of the intersection of Bryn Mawr and Kenmore. Plaintiff came out of the hotel on the Bryn Mawr side, through a cleaning shop, intending to visit a beauty shop, which was located on the north side of Bryn Mawr at about the middle of the half-block which runs from Kenmore on the east to the alley on the west. The front entrance of the hotel is on Kenmore, a short distance from the intersection of Kenmore and Bryn Mawr, where there was a marked crosswalk protected by traffic lights. The cleaning shop was about in the center of the block on the first floor level of the Bryn Mawr Hotel, east of the scene of the occurrence.

On cross-examination, plaintiff testified, ". . . I actually saw the car just as it hit me. I saw this car that was parked there; as it hit me I saw it and fell right to the street. . . . Instead of coming out of the front entrance I came out through the cleaning shop. I was not late for my appointment. I came out and walked west, to a point further down from the beauty parlor, further down to the alley. The beauty parlor was about three or four buildings up further east. I could see it by looking across the street. I wasn't directly across from the beauty shop because I had gone down to the alley to cross. I remember this car that was parked there at the curb. There was no car parked back of it. There were a number of cars parked along there, and I noted particularly this car as I passed it. I looked at it to see if someone was in it before I stepped — went by it, so if he — see if somebody was in it, because I was going to cross. . . . I looked into because I was going to cross at the alley . . . and if somebody had been in it, I wouldn't have done it. I thought someone might back up so I didn't step in. I walked down about seven or eight feet in back of the car. I was standing close to the alley; I would say a couple of feet, two or three feet. I was in line with the door of the TV shop when I stepped off. I was looking north; that would be straight in the direction in which I was going. As I walked behind this car, I looked again at this car, as I walked in back of it. I did not see anybody in it. I did not see anybody around it. I continued walking and walked about five feet out off the curb. . . . I was standing in back of the driver's seat in the car. . . . As I walked out I looked again, and I did not see anybody. When I reached this five feet mark I stood there for several minutes — a couple of minutes, then just — well, just standing there waiting to cross the street. I looked both ways, up and down watching the traffic to wait for the red light to come on up at Kenmore so I could cross. I was watching the light up at Kenmore to see if I would be able to cross. I was particularly interested in the light at Kenmore. I did not see a man come around this car, open the door, or put anything in the driver's side or get into the car on the driver's side. I did not hear any motor start. I was about seven or eight feet back of the car. I did not see the car begin to move towards me. I did not notice Mrs. Koontz across the street."

Mildred Koontz testified that she was employed as a beautician at 1044 West Bryn Mawr Avenue, just west of Kenmore on the north side of the street. She knew plaintiff, who had an appointment with her "around 4:00 or 4:30 in the afternoon." She had finished with her last customer and was waiting for plaintiff to come in. "I had occasion to look out and I was watching for Mary Borries. I did not see her at that time. While I was standing there I observed a man coming out of the liquor store across the street and get into his car. He got into his car, and then I see him get out of his car and walk toward the back of his car, and then I notice there was a person lying back of the car on the street. At that time I did not recognize this person. When I saw him pick her up I realized that it was my customer, Mary Borries, so I went over to assist her. . . . The first time I saw Mary Borries on that day she was lying on the street . . . in front of the door of the radio store generally. I saw the driver of the car where the car was parked prior to the time that it was moved, and the car was parked in front of the liquor store. . . . I observed the man (defendant Schultz) walk in front of his car and walked around to the driver's side, got into the car on the driver's side. He had a carton of something, I don't know what it was; it was just a carton. The door of the beauty shop was open. I did not hear any horn at any time prior to the time that he backed his car up."

On cross-examination, she testified, ". . . The beauty shop is east of the alley, in about the middle of the block between the alley and Kenmore; that is, the middle of the half block. There is a traffic signal at Bryn Mawr, and there are marked pedestrian crosswalks there."

Defendant Schultz, called by plaintiff as if under cross-examination, testified that he had parked his car two parking spaces from the alley, and there was a car between his car and the alley, with a normal space of three or four feet. He went to the supermarket, came back to his car, and his recollection was that he got in on the driver's side. He turned on the ignition, looked back, then went forward, put the car in reverse and looked back again. At that time he saw an arm going up at the right rear of the car, toward the curb. He immediately stopped his car and went around to the back, where he found the plaintiff lying by the curb in the street. At no time before the occurrence did he see plaintiff. "I didn't pass her on the sidewalk. I didn't see her standing behind the car when I got in. The first time I saw the plaintiff was when an arm went up to the right rear of the car."

Testimony was introduced by plaintiff as to her injuries and her physical condition prior to the occurrence and after the occurrence, and it is not material to any of the issues raised on appeal.

At the close of all of the evidence offered on behalf of plaintiff, the defendants moved to adopt the testimony of defendant Schultz, called under section 60 as an adverse witness, and offered some photographs of the scene of the occurrence, which were received in evidence.

The special interrogatory given on behalf of defendants was the following: "Interrogatory — Was the plaintiff guilty of negligence which proximately contributed to cause the occurrence in question?" Answer — ...


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