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Klinkenberg v. Horton

MARCH 22, 1967.

DOROTHY KLINKENBERG, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF HAROLD R. KLINKENBERG, JR., DECEASED, PLAINTIFF-APPELLEE,

v.

VIRGINIA M. HORTON, DEFENDANT-APPELLANT.



Appeal from the Fourteenth Judicial Circuit of Rock Island County; the Hon. L.L. Winn, Judge, presiding. Reversed and remanded.

ALLOY, J.

This is an appeal from a judgment in favor of plaintiff Dorothy Klinkenberg in a wrongful death action as against Virginia M. Horton, defendant. There were two counts in the complaint, one of which sought recovery for funeral, medical and hospital bills by Dorothy Klinkenberg individually, and the other count by Dorothy Klinkenberg as administratrix sought recovery for pecuniary loss to Dorothy Klinkenberg and the three minor children of decedent. The jury returned a verdict in favor of Dorothy Klinkenberg individually for $20,200 and in favor of Dorothy Klinkenberg as administratrix of the estate of Harold Klinkenberg, deceased, for $1,890.57. The jury was directed, thereafter, by the trial court, to amend its verdict so as to correct it, and in doing so awarded $1,890.57 to Dorothy Klinkenberg individually and $20,200 to Dorothy Klinkenberg as administratrix of the estate of decedent. Judgment was entered on the amended verdict.

The record in the case discloses that Harold Klinkenberg, the decedent, was riding on a motorcycle in a southerly direction on Route 67 which is a four-lane arterial highway running north and south in Milan, Illinois. Defendant Virginia Horton was driving an automobile at the intersection of Route 67 and 12th Avenue West. The collision occurred on the evening of May 11, 1964, between 8:30 p.m. and 9:00 p.m.

Route 67 has two lanes for northbound traffic and two lanes for southbound traffic, which dual lanes are separated by a center grassy median area or strip. 12th Avenue West is an access road. Traffic entering Route 67 from 12th Avenue West is required to stop. Stop signs were located at the intersection. Traffic crossing either the north or southbound lanes by way of the road across the grassy median strip were required to yield the right-of-way to vehicles on Route 67 by signs placed there which read "Yield Right-of-Way."

The record shows that the night was dark and decedent Harold Klinkenberg had his lights on and had just passed through a State Police headlight check. He was traveling in the most westerly or right-hand lane for southbound traffic on Route 67. He had stopped for a red light a few hundred feet from the scene of the collision. He then went up a long gradual incline from the place where he had stopped to the place of collision. There were no obstructions to the view of vehicles on the highway at the time. There was a conflict in the evidence as to the speed at which Harold Klinkenberg was traveling and the manner in which he was operating the motorcycle.

Defendant Virginia Horton was crossing Route 67 east to west by use of the road across the median strip between the north and southbound lanes at 12th Avenue West. The record indicates that she did not stop when she reached the southbound lane but proceeded at a slow rate of speed. The evidence was conflicting as to whether under the circumstances she failed to yield the right-of-way to decedent. The evidence was also conflicting as to where the impact of the collision actually occurred, whether it was on Route 67 or on 12th Avenue West.

On appeal in this Court, defendant contends that the evidence was not sufficient to support plaintiff's verdict on the ground that there was no evidence tending to show exercise of due care by plaintiff's intestate and that the verdict was against the manifest weight of the evidence in finding that defendant was negligent. Defendant contends that judgment should be entered notwithstanding the verdict or a new trial granted on this ground.

It is also contended that the trial court committed reversible error in the giving of certain instructions on behalf of plaintiff. It is further contended that the trial court committed error in rulings on the evidence during the trial, and in permitting plaintiff's counsel to make prejudicial arguments to the jury, and also erred in refusing to allow defendant's counsel to poll the jury and in directing the jury to amend its verdict.

[1-4] On the issue of whether the verdict was contrary to the manifest weight of the evidence and whether there was sufficient evidence of due care on part of plaintiff, we have frequently stated that a reviewing court will not substitute its judgment for that of a jury in passing on the weight and credibility of conflicting testimony and that for a verdict to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent (De Legge v. Karlsen, 17 Ill. App.2d 69, at 75, 149 N.E.2d 491). The evidence in this case conflicted as to the facts and the question of whether or not the decedent was guilty of contributory negligence and whether or not defendant was guilty of negligence proximately causing the death of decedent were questions for the jury and such jury's determination would not be disturbed by this Court on review in state of the record (Mueth v. Jaska, 302 Ill. App. 289, 294, 23 N.E.2d 805; Stowers v. Carp, 29 Ill. App.2d 52, 172 N.E.2d 370).

The problem of major concern on appeal in this Court arises from defendant's contention that there was reversible error in the giving of plaintiff's Instructions Nos. 16 and 17 over defendant's objection. Plaintiff's tendered Instruction No. 16 which was given by the court was submitted in the following language:

"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided:

"`The driver of a vehicle in obedience to a yield right-of-way sign shall reduce the speed of his vehicle to not more than 20 miles per hour and shall yield the right-of-way to other vehicles which have entered the intersecting highway either from the right or left or which are approaching so closely on said intersecting highway as to constitute an immediate hazard; but said driver having so yielded may proceed at such time as a safe interval occurs.'

"`If a driver is involved in a collision at an intersection or interferes with the movement of other vehicles after driving past a yield right-of-way sign, such collision or interference shall be deemed prima facie evidence of the driver's failure to yield right-of-way.'

"If you decide that a party violated this statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not such party ...


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