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Tylitzki v. Triple X Service

JUNE 2, 1970.




Appeal from the Circuit Court of Cook County; the Hon. HARRY L. ZIEGLER, Judge, presiding. Reversed and remanded with directions.


This appeal is taken by Triple X Service, Inc. and Richard E. Hebson, defendants, from a judgment entered in the Circuit Court of Cook County in favor of Joan L. Tylitzki, plaintiff. After a jury trial on December 11, 1967, the court entered a judgment of $24,000 in favor of the plaintiff.

On October 23, 1962, the plaintiff was driving north in the east lane of Roselle Road in Hoffman Estates, approaching the intersection of Flagstaff Road, when her car collided with a truck driven by Richard E. Hebson, and owned by Triple X Service, Inc. Flagstaff Road was then under construction about eighty feet from its intersection point with Roselle Road, and barricades erected about eight feet from the road caused trucks to have only nine feet in which to pull in and out. Defendant Hebson was attempting to back his truck into the nine-foot gap to get back to the construction area, and had to pull onto Roselle Road several times, blocking the road. While he was maneuvering his truck, the plaintiff was driving north on Roselle; she saw the truck and slowed down, but, according to her testimony and that of one of her passengers, the truck came right through a stop sign and collided with her car. Defendant Hebson testified that there was no stop sign; and there is also conflict in the testimony as to whether the truck was moving at all at the time of the incident.

During the trial the court, at plaintiff's request, instructed the jury as follows:

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

All construction work upon bridges or highways within the State of Illinois shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical, and when not safe and practical, or when any portion of the highway is obstructed, one-way traffic shall be maintained, unless the authorized agency in charge of said construction directs the road be closed to all traffic.

If you decide that a party violated the 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 a party was negligent before and at the time of the occurrence.

The instruction should not have been given. It was objectionable on several grounds. The construction was on Flagstaff; the collision occurred on Roselle. The plaintiff maintains that Roselle was directly involved since trucks working at the construction site had to use Roselle to maneuver around to reach the project. We believe that a proper interpretation of the statute is that the legislature was attempting to reach a proper means of protecting the public traveling on the road which was itself the subject of the construction. Roselle was not such a road. The statute does not state that all arterial roads coming into the construction site shall be affected by the statute's directives; rather, it mentions "the highway," not all highways proximately related to the site.

The instruction informed the jury that if "a party" violated the statute that fact could be considered in determining whether or not such "a party" was negligent. This rather vague reference is confusing. Furthermore, plaintiff's complaint does not even allege that the defendants were the ones charged with control of the construction site, yet the statute quoted to the jury refers to the "authorized agency in charge of said construction." The plaintiff was not entitled to the instruction since no foundation had been laid for it. Gerler v. Cooley, 41 Ill. App.2d 233, 190 N.E.2d 488.

We conclude that the plaintiff was not among the class of persons protected by the statute since she was not traveling on the road under construction at the time of the occurrence. Furthermore, the instruction should not have been given because there were no allegations that defendants were the parties charged with the responsibility of safety at the site; and the language of the instruction, referring to "a party," was more confusing than helpful. We are, therefore, reversing the judgment and remanding the cause for a new trial.

Since there will be a new trial we must now consider a matter which arose at the trial and which is likely to arise again. There was much testimony regarding the extent of plaintiff's injuries, including the testimony of a neurologist and an orthopedist, also testimony concerning the results of X rays, myelograms and electromyograms. As a part of plaintiff's treatment psychiatry was recommended, and at trial the defendants had subpoenaed her psychiatrist, attempting to put him on the stand. The plaintiff objected, the trial court sustained the objection and quashed the subpoena, refusing to allow the doctor to testify to matters regarding his psychiatric treatment or consultations with the plaintiff.

The defendants argue that plaintiff had placed her mental condition in issue by claiming past and future pain and suffering as one element of her damages. They further contend that with such a claim they should be allowed to question the psychiatrist so that it could be ascertained whether plaintiff's pain and suffering was truly the result of physical trauma sustained by the accident, or whether it was a manifestation of some unrelated cause. Ill Rev Stats 1965, c 51, § 5.2, provides in pertinent part:

"In civil and criminal cases, . . . a patient . . . and a psychiatrist . . . have the privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient's ...

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