Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. PHILIP F. LOCKE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Raymond Spiotta recovered a judgment for personal injuries, based on a jury verdict, against William W. Hamilton and his employer, Eagle Food Centers, Inc., defendants, in an action arising from an intersectional collision.
On appeal defendants urge that the verdict and a special finding that plaintiff was free of contributory negligence are against the manifest weight of the evidence, and that the court should have directed a verdict finding plaintiff guilty of contributory negligence as a matter of law. The defendants, additionally, claim prejudicial trial errors precluded a fair trial, including the giving and refusing of certain instructions and rulings on objections to closing argument of plaintiff's counsel.
The action occurred approximately 3:30 p.m. on Saturday, December 10th, 1966. The day was overcast with sporadic snow flurries. The intersection was regulated by traffic lights, but at the time of the occurrence, the lights were inoperative as a result of a mechanical failure.
Hamilton, operating a vehicle owned by Eagle Food Centers, was traveling in an eastbound direction on Route 56 as he approached its intersection with the Wheaton-Naperville Road in a rural area. Spiotta was traveling northbound on the Wheaton-Naperville Road. Both were two-lane highways.
Spiotta testified he was familiar with the intersection, and when he was about two-tenths of a mile from the intersection he noticed that the stop-and-go lights were inoperative. He began to slow his car and when he was about 200 feet south of Route 56, approaching 30 to 35 miles per hour, he activated his left turn signal, intending to turn left, which would take him westbound on Route 56. There was a northbound car ahead of him, not yet to the intersection. He stopped some distance from the intersection behind the other northbound car and saw southbound and westbound cars stopped at the intersection. He first noticed the defendant Hamilton's car when it was about 500 feet to the west, moving 50 to 55 miles per hour. When he saw the northbound car ahead of him move out, he moved up to the intersection and stopped again. He observed other vehicles southbound and westbound which came up to the intersection and took turns proceeding from a dead stop. Other southbound and westbound vehicles were also coming up and stopping behind these cars and halting.
Plaintiff testified that he then looked to the west and saw Hamilton's car for the second time, at which time the car was about 200 feet from the intersection and "slowing up quite rapidly." He estimated Hamilton's speed at that time to be 30 to 35 miles per hour. He then glanced to the north to check the southbound traffic, looked to the east to check the westbound traffic, and slowly entered the intersection. He did not see Hamilton's car again prior to the impact, but estimated that Hamilton's car was about 100 feet from the intersection when he entered, relying on his judgment.
At impact he was in the first gear, going about 3 miles per hour. He heard the sound of a brake, which first called his attention to the occurrence of a collision, and immediately glimpsed a part of the Hamilton car in contact with his vehicle. When his car was struck, plaintiff had traveled 20 feet or almost to the center line of Route 56. He did not honk his horn or swerve prior to impact. There were no obstructions to plaintiff's view of the Hamilton car. He did not see any other cars moving at or near the intersection when he started his turn. When he started into the intersection he did not see that Hamilton's car was stopped.
Defendant Hamilton testified that when he was about one-half mile from the intersection he was traveling 50 to 55 miles per hour. There were no other eastbound vehicles between defendant and the intersection. Route 56 is a straight road for a distance of one-half mile west of the intersection, with a slight downhill grade. When he attained this point, he was able to get a clear view of the intersection, to observe the existence of traffic control lights and also to observe an accumulation of cars at the intersection. He observed a northbound car approach the intersection, come to a stop, and then turn or go north through the intersection. At the time that car went through the intersection, defendant was about a quarter of a mile from the scene. He reduced his speed from 50 to 55 miles per hour down to 30 to 35 miles per hour by taking his foot off the accelerator.
As he approached within one block from the scene he saw a westbound car turn right, and at that same distance from the intersection observed plaintiff Spiotta's vehicle slowly come to a stop. Defendant's speed was 30 to 35 miles per hour at this time; he never decreased his speed any further until the time he reached the western part of the intersection at which point he slammed on his brakes just prior to the collision.
Defendant further testified that plaintiff's vehicle was about 8 feet south of the edge of Route 56 when it came to a full stop. When Hamilton arrived at the western part of the intersection still traveling 30 to 35 miles per hour, he saw the plaintiff start to pull out. He was about 20 feet from the plaintiff's vehicle at this time. The accident occurred in the southeast quadrant of the intersection.
Hamilton stated that he had a conversation with the plaintiff after the accident and that Spiotta asked the whereabouts of the "other guy" who was in the accident; that he identified himself and that Spiotta said, "Well, where the hell did you come from?" (But the plaintiff recalled no conversation with the defendant.) Hamilton further testified that he observed his skid marks and pointed them out to trooper Allen. (But Allen who testified, did not have a notation of the skid marks listed on his report and had no independent recollection.) The defendant stated that he did not sound his horn prior to the accident.
Defendants argue that the undisputed testimony of plaintiff that he did not look to his left after seeing the defendant Hamilton 200 feet away moving 30 to 35 miles per hour amounts ...