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Ballard v. Jones

JUNE 25, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.


Rehearing denied August 15, 1974.

This is an action by Donna Ballard against Charles K. Jones and the City of Chicago alleging that their negligent actions either jointly or individually caused injuries she received as a result of an automobile accident. Subsequent to a jury verdict, the Circuit Court entered judgment in favor of defendant Jones and against defendant City of Chicago in the amount of $350,000. The City of Chicago appeals, and, in urging reversal of the judgment, contends that the trial court erred in failing to direct a verdict in its favor, or alternatively, that it is entitled to a new trial based upon certain evidentiary and instructional errors.

Since no question of damages is raised, the following summary is limited to evidence on the issue of liability. On the evening of August 23, 1969, plaintiff, Donna Ballard, accompanied by her husband, Ronald, and four out-of-town relatives and friends, went for a tour of Chicago in the Ballards' car. At approximately 1 A.M. on August 24, 1969, the Ballard party stopped at a lounge. One hour later, the entire party left the lounge by car and traveled south on Paulina Street attempting to find Diversey Avenue. Ronald was driving. The evening was clear and dry. As Ronald approached the intersection of Diversey and Paulina he slowed down; his highest speed prior to reaching Diversey was between 20 and 25 mph; he had never traveled through this intersection before. Mr. Ballard testified that he did not see the stop sign on the northwest corner of the street, nor did he notice any sign indicating that he was approaching Diversey. When the front of his vehicle was even with the crosswalk, he glanced to his left, and then to his right, for approaching vehicles; he saw none. When he looked to his left again, he saw only the parking lights of a vehicle being driven by Charles Jones in a westerly direction on Diversey. Immediately thereafter, the Ballard car was struck by the Jones car in the middle of the Pauline-Diversey intersection. As a result of the occurrence, Mrs. Ballard, who was facing the rear of the car at the time of the collision, became a paraplegic.

Diversey is a major east-west street lighted by 800-watt mercury vapor lamps, while Pauline is a north-south side street lighted by 175-watt lamps. There are stop signs to halt traffic on Paulina located on the northwest and southeast corners of the intersection. Buildings are situated on all four corners of the intersection and Paulina is lined by trees on both sides. Plaintiff's photographic evidence tends to indicate that the stop sign located at the northwest corner of the intersection to halt traffic southbound on Paulina was hidden by foliage from trees located in the parkway between the curb and the sidewalk. *fn1 The stop sign and the trees were under the control and maintenance of the City of Chicago.

Plaintiff sought recovery grounded on the theory that Mr. Jones was negligent for driving with only his parking lights on, and that the City of Chicago was negligent in that it permitted foliage of a parkway tree to obstruct the stop sign on the northwest corner of Paulina.

Defendant's initial contention is that the trial court erred in failing to direct a verdict in favor of defendant on the issue of proximate cause. Relying upon the well-settled proposition that the operator of a vehicle, regardless of the right-of-way, has a duty to maintain a proper lookout for other vehicles (e.g., Homka v. Chicago Transit Authority, 2 Ill. App.3d 334, 276 N.E.2d 351), defendant argues that the following evidence overwhelmingly demonstrates that the sole proximate cause of the collision was the failure of Ronald Ballard to keep a proper lookout. Ronald testified that he was traveling south on Paulina while looking for Diversey Avenue; that although he noticed the intersection and slowed down, he failed to see both the street sign that he was looking for and the stop sign; that he also failed to notice that the street he was approaching was brighter and wider than Paulina, and failed to see the vehicle driven by Jones.

• 1 The supreme court, in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, set forth the standard that a court must use in considering a motion for a directed verdict:

"In our judgment verdicts ought to be directed * * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

• 2 Viewing the present matter under the Pedrick Rule, we initially note that the entire thrust of defendant's argument addresses itself to the commissive conduct of a third party while neglecting any comment upon its own omissive conduct. Even assuming that the conduct of Ronald Ballard contributed to the injuries, if the reasonable inferences which might be drawn from the evidence could also support the finding that defendant's negligence by omission was a contributing proximate cause, it is no defense that the injuries would not have occurred without the concurring active misconduct of another person. (Chmielewski v. Marich, 2 Ill.2d 568, 119 N.E.2d 247; Crowe Name Plate & Manufacturing Co. v. Dammerich, 279 Ill. App. 103.) The question of what is the proximate cause of an injury is ordinarily a question of fact (Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74), and in order for a court to say as a matter of law that the omissions of a party constitute a passive condition rather than a contributing proximate cause, there can be no room for any other reasonable inference from the facts. Cohn v. Petroleum Heat & Power Co., 44 Ill. App.2d 23, 194 N.E.2d 29.

• 3 Turning from these general principles to the present case, the record reveals that Ronald Ballard, upon approaching the intersection, looked to his right (on the northwest corner) for a sign identifying the intersecting street; he saw neither a street sign nor a stop sign, but only trees. Plaintiff's photographs indicate that the stop sign located on the northwest corner was obscured by the foliage of trees located on the parkway. Considering this evidence, it is not unreasonable to infer that had the stop sign been visible, the collision would not have occurred. Accordingly, it was proper for the trial court to deny a directed verdict on the issue of proximate cause.

Defendant also contends that the trial court erred in failing to direct a verdict in favor of defendant on the issue of contributory negligence. Defendant argues that at the time of the occurrence plaintiff was facing the rear seat of the automobile talking to her relatives, and therefore, as a matter of law, failed to exercise care for her own safety. Like proximate cause, the question of contributory negligence ordinarily and preeminently presents a question of fact. (Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162.) A passenger riding in an automobile is only required to exercise such care as the exigencies of the situation require. (Hatcher v. New York Central R.R. Co., 17 Ill.2d 587, 162 N.E.2d 362.) In the absence of circumstances which would ordinarily cause a reasonable man to act, a passenger is not necessarily contributorily negligent because of inaction or failure to give advice. (Zank v. Chicago, Rock Island & Pacific R.R. Co., 17 Ill.2d 473, 161 N.E.2d 848; Goldstein v. Hertz Corp., 16 Ill. App.3d 89, 305 N.E.2d 617.) If the circumstances are such that a passenger is not required to act, mere inattentiveness need not preclude recovery. Gillan v. Chicago North Shore & Milwaukee Ry. Co., 1 Ill. App.2d 466, 117 N.E.2d 833.

• 4 Here there is evidence that the Ballard vehicle was being driven at a normal rate of speed, the streets were dry, and the night was clear. There is nothing in the record which demonstrates that either the conditions of travel or the manner in which the vehicle was being driven were such that the inattentiveness of plaintiff constituted contributory negligence as a matter of law. Under the rule of Pedrick, the question was properly presented to the jury.

It is next contended that the court erred in refusing to allow defendant to inquire if Ronald Ballard had consumed intoxicants prior to the accident. On the cross-examination of Ronald Ballard, defense counsel attempted to elicit whether the witness had any alcoholic beverages to drink at the lounge the Ballard party had previously visited. Counsel for plaintiff objected. The trial judge stated that he would sustain plaintiff's objection unless defense counsel could demonstrate the relevancy of the question. As a side-bar conference defense counsel, in arguing that the reason the witness did not see the stop sign might have been due to his use of alcohol, stated: "It may have been alcohol, I don't know. I don't know what he is going to say but I am ...

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