Appeal from the Circuit Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Judgment reversed and cause
remanded for a new trial.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment of the Circuit Court of Cook County denying plaintiff's motion for a new trial, entered after a jury returned a verdict for the defendants and answered a special interrogatory also in defendants' favor. Plaintiff asserts that denial of the motion was error in that (a) the jury's verdict and answer to special interrogatory were against the manifest weight of the evidence, and (b) submission of defendants' special interrogatory to the jury was error.
The injuries of which plaintiff complains are alleged to have been sustained as the result of a collision between the automobile in which plaintiff was riding as a passenger and a truck operated by the defendant United Parcel Service and driven by its employee, defendant John R. Farwick.
Lewis Golik, driver of the auto in which plaintiff was riding, was called by the plaintiff and testified as follows. On May 16, 1961, at approximately 3:45 p.m. he was driving his automobile in a northerly direction on Kedzie Avenue. He was in the curb lane as he approached the intersection at 31st Street. There were three passengers in the car, including plaintiff who was sitting in left rear seat. Traffic was extremely heavy at the time and proceeded in a stop and go fashion. Before he reached the intersection his car was struck at the post between the front and rear doors on the right side by a United Parcel Service truck which had emerged from a driveway. The truck was facing in a westerly direction.
The witness did not see the truck until immediately prior to the collision when someone shouted "look out." Upon sighting the truck the witness attempted to brace himself. Nevertheless, the force of the impact caused his body to be thrown to the left. Also as a result of the impact, the body of the car tilted to the left and the passenger in the right front seat was thrown toward the witness. The witness did not recall seeing any other truck, nor did he signal the United Parcel Service Truck to proceed prior to the collision. He did not accelerate his car at any time while in the vicinity of the driveway from which the truck emerged. The truck was driven by the defendant, Farwick.
After the collision the witness surveyed the damage to his automobile. The front of the truck struck his vehicle at the right post causing both doors and the post to be pushed inward. To the best of his recollection the cost of repairs was $225.
At the scene of the collision witness noticed that plaintiff, a fellow employee, appeared to be injured and was slightly bent over. Plaintiff did not return to work for some time and when he did return he did not do the hard work which he had performed prior to the collision. Formerly the plaintiff had been a jovial person, but since the occurrence he acted as though he had worries and appeared to have aged.
Carl E. Jensen, the second witness called by the plaintiff, was a passenger in the right front seat of the Golik auto. He first saw the truck as it stood in the driveway four to five feet to the right (east) of the Golik auto. At this time the Golik vehicle was blocking approximately three-fourths of the mouth of the driveway. The truck then started forward and continued without stopping until it struck the Golik vehicle. The witness estimated the speed of the truck at four to five miles per hour. At impact the witness was thrown forward and to his left, his body striking the dashboard and steering wheel. His hat was thrown to the left side of the rear seat. When he saw the truck move forward he thought that its driver could see the car and would stop. There was not sufficient room between the Golik vehicle and that immediately ahead for the truck to pass between them. The witness noticed that Snow, plaintiff, looked pale following the collision.
Plaintiff's brother, John Sosnowski, passenger in the right rear seat, testified that the collision occurred as the car began to move forward following a change of the traffic signal at 31st Street. The truck had been standing in a driveway while the car was stopped. Immediately prior to the collision, the distance between the Golik vehicle and that ahead of it was two to three feet. The impact caused the car to be moved eighteen to twenty-four inches to the left and caused the witness to be thrown to the left and into his brother. He landed on top of his brother. He estimated the truck's speed to be five miles per hour.
Mr. Sosnowski finally testified that his brother was not the same when he returned to work. He required help in doing certain heavy work which he had previously done alone.
Officer Richard Schneider of the Chicago Police Department was the fourth witness called by the plaintiff. He testified that he was sent to investigate the collision in question and spoke with defendant Farwick at the scene. Farwick told him that he did not know how far he was from the car when he first saw it and estimated his speed prior to the collision at three to four miles per hour.
The Officer further testified that he conversed with the occupants of the Golik vehicle and they appeared to him to be "shaken-up." Plaintiff complained of a scratch on his right hand and a back injury, but refused first aid, indicating that he would see his own doctor.
Elmo Brown, called as a witness by the plaintiff, testified that he was standing in an auto storage lot south of 31st Street on Kedzie Avenue at the time of the collision. He first observed the truck as it emerged from the driveway but was not yet across the sidewalk. The truck continued forward without stopping until it struck the Golik auto. No horns were sounded prior to the collision.
Edward Snow, plaintiff, testified as follows. He was a passenger in the left rear seat and had nothing to do with the operation of the automobile. He did not see the truck prior to the collision, nor did he have any warning prior to the collision. The force of the impact caused him to be thrown first to his left, into the corner formed by the rear seat and the side of the car and then to his right. His brother, seated to his right, was thrown toward him. A hat which the passenger in the right front seat had been wearing was thrown toward him. Following the ...