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Josel v. Rossi

OCTOBER 5, 1972.

JOSEPHINE JOSEL, PLAINTIFF-APPELLANT,

v.

FLORENCE ROSSI, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND TRAFELET, Judge, presiding.

MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This case involves an appeal by the plaintiff from a judgment for the defendant in a personal injury action tried by a jury.

We reverse and remand.

The facts of the case are as follows: Plaintiff and defendant were co-workers in a manufacturing plant. Plaintiff had been riding to and from work with defendant in defendant's car. The plaintiff paid the defendant $3 per week for this service. On February 9, 1968, while they were riding to work in the defendant's car, the defendant lost control of the wheel, and the car ran over the curb and struck a building. The plaintiff received fractures of both legs. The plaintiff instituted this lawsuit to recover for her alleged damages.

The testimony of the parties as to the circumstances surrounding the accident is conflicting. The plaintiff testified that it as still dark out, that the roads were generally dry with the exception of some ice patches on the parkway. Plaintiff was not wearing seat belts at the time of the accident. She testified that she saw no seat belts in the car during all the time she rode with the defendant. Plaintiff was seated in the right front seat at the time of the accident. She testified that as the defendant was making a turn, she slowed down because another car was approaching. Then, all of a sudden, the defendant's car went "real fast" and they were "on top of the building."

The defendant testified that there was a patch of ice on the road, and the car skidded on it. However, she had her hand on the wheel and still had control. Then she heard plaintiff scream and saw her raise her hands, and she got frightened. The next thing she knew the car jumped the curb and struck the building. The defendant said she had told plaintiff prior to giving her any rides that she was a new driver and that plaintiff said she was still willing to ride with her. Defendant introduced a 2 1/2 year old sales invoice made out at the time the defendant's car was purchased which invoice referred to two front seat belts being part of the car's original equipment. On cross-examination defendant said she was not wearing a seat belt at the time of the accident.

At trial the defendant called as an expert witness an automotive safety engineer. The witness had previously worked at designing and testing seat belts. Over plaintiff's objection, and in response to defendant's hypothetical question, the witness testified that in his opinion the plaintiff, had she been wearing seat belts, would not have sustained injuries to her lower extremities. The defendant also called as a witness a commercial photographer who testified that he had taken films of the plaintiff on April 10 and 11 and December 9 and 10 of 1969. These films were introduced into evidence and shown to the jury. These films, for the most part, showed the plaintiff walking.

At the close of all the evidence the court gave the jury the following defendant's instructions regarding seat belts:

"Instruction #30:

The court instructs the jury that every person riding in an automobile has a duty to use seat belts when and if they are available, not only to avoid injury to himself or herself but to mitigate any injury he or she would likely sustain. You may consider this proposition along with the other facts and circumstances in evidence in arriving at your verdict.

Instruction #31:

The jury is instructed that, in the event you find that the plaintiff did not use a seat belt, if one was available, you may consider this fact, along with all the other facts and circumstances in evidence, in your determination as to the proximate cause of the injury sustained by the plaintiff.

Instruction #32:

In the event that you have occasion to pass on the issue of damages, and if you find from the evidence and under the instructions of the Court that the vehicle of the defendant was equipped with seat belts just before and at the time of the occurrence complained of, and if you further find that plaintiff failed to make use of said seat belts just before and at the time of the occurrence, then you may consider those facts together with all the other facts and circumstances in ...


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