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Penzin v. Stratton

AUGUST 19, 1974.

RAE JEWELL PENZIN, PLAINTIFF-APPELLEE,

v.

THOMAS A. STRATTON, DEFENDANT. — (MICHAEL B. MODUTHAGAM, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:

A jury returned a verdict in favor of the plaintiff, Rae Jewell Penzin, and against both defendants, Thomas Stratton and Michael Moduthagam, in the amount of $101,800, based on a complaint for personal injury. Only Moduthagam has appealed. His principal contention is that the evidence fails to establish any negligence on his part and, consequently, that the trial court should have directed a verdict in his favor.

At the point where they intersect in Chicago, Oliphant Street runs in a general northeast-southwest direction and the Northwest Highway in a general northwest-southeast direction.

Richard Oulund testified for the plaintiff that on the day of the accident he was driving northeast on Oliphant. He pulled up behind another car that had stopped for the red light. He had been stopped for a few seconds when he heard "screeching" brakes and saw the Moduthagam car "skidding" on Northwest Highway. He saw Stratton's car driving southwest on Oliphant coming into the intersection against the light. He estimated the length of the skidmarks to be about 20 to 25 feet and the speed of Moduthagam's car to be 25 to 30 miles per hour, but Moduthagam had slowed down by the time he collided with Stratton's car. He estimated Stratton's speed at 15 to 20 miles per hour going through the red light. Stratton's car was hit in the left front fender and door; it changed direction and proceeded over the curb on the southwest corner where the Fannie May Candy Store was located. Moduthagam's car was stopped in the middle of the intersection after the impact. Stratton's car had gone through the window of the candy store and pinned the plaintiff against the wall. Oulund and others ran over and pulled Stratton's car away from the plaintiff and placed her on the sidewalk. Oulund had a conversation with Stratton, who said, "Wasn't the light green?" Oulund replied, "It was red all the time when you went through the intersection." Moduthagam's car made no attempt to swerve, and Oulund did not hear any car horn.

Richard Maher, a Chicago policeman and traffic investigator, testified that when he went to the scene Moduthagam's car was still in the intersection and Stratton's car was in the Fannie May Candy Store. He estimated the length of the skidmarks from Moduthagam's car to be 30 to 35 feet. They were light at the crosswalk and heavy for about 25 feet up to the point of impact. Stratton told him that he went through the red light on Oliphant. Moduthagam told him that he was northwest bound on the Northwest Highway when Stratton's car went through the red light; he saw it at the last minute, applied his brakes and struck it.

Harold Miller was in his car traveling northeast on Oliphant. His car was first in line stopped at the light at the Northwest Highway. He watched the plaintiff walking in front of him from the southwest corner to the northwest corner. She walked to the newsstand, and at the time the light was still red. He looked back to the newsstand and saw the plaintiff talking to a man there. He turned back to check the light and that is when the collision occurred. He heard no horn or screeching brakes, but he saw "a heck of an impact." Stratton's car was struck and continued toward the candy store. Stratton's car went up on the sidewalk, and the plaintiff and the man she was talking to started running away. Moduthagam's car had stopped in the intersection at the time of the collision. Miller estimated the length of the skidmarks behind Moduthagam's car to be "at least a car length, maybe more." He estimated the speed of Moduthagam's car just prior to impact to be "at least 20 miles an hour." He testified that Moduthagam's car "was going fast."

Moduthagam, called as an adverse witness, testified that he was proceeding northwest on Northwest Highway and that he was familiar with the intersection. The posted speed limit was 30 miles per hour. As he approached the traffic signal at the intersection, it was red. There were five cars in front of him waiting for the light. The light changed to green, and he followed the cars toward the intersection. There was approximately one car length between his car and the car immediately in front of him. There were no cars behind him. He estimated that he achieved a speed of about 20 miles per hour before the collision. As he entered the intersection he was looking straight ahead but with his peripheral vision saw the cars at his left stopped at a red light. Suddenly he saw something coming from the right. At that time, his car had passed the pedestrian crosswalk, and the Stratton car on Oliphant was coming toward him. He applied the brakes as fast as he could and put all his weight on the pedal and pushed it as far as it would go to the floor. After the collision Stratton's car was diverted by the impact and proceeded to the candy store. Moduthagam was knocked under the dashboard by the force of the impact, and someone had to help him out of the car through the rear door. He said that the light was green before he entered the intersection and had not changed up to the time of the collision. He signed a statement in which he stated he was going "about 28 miles per hour." In a deposition he stated he was traveling 20 to 25 miles per hour.

Thomas Stratton testified as an adverse witness that he was traveling southwest on Oliphant. When he got within 75 feet of the intersection of the Northwest Highway, he looked up and saw a green light. Thereafter his attention was drawn away, and he did not check the light again. He was traveling at 25 miles per hour and did not slow down for the intersection because he believed he had a green light. He never told the police officer that he had a red light. After he entered the intersection he was hit so hard that he lost control of the car and crashed into a building. The fire department had to use a crowbar to get him out. He was looking straight ahead before the collision and never saw the other car. On cross-examination he testified that at the time he went into the intersection he did not know if the light was red or green.

The plaintiff testified that on the morning of the accident she was walking along the Northwest Highway. The traffic signal for pedestrian traffic along Northwest Highway had just turned green. She proceeded across Oliphant from the southwest corner to the northwest corner to purchase a newspaper. After she got up on the sidewalk and attempted to buy a newspaper she heard a screeching crash. She ran toward the candy store and was struck.

In the complaint Stratton was charged with operating his vehicle through a red stoplight signal; but Moduthagam was not. The evidence clearly establishes, and the plaintiff apparently concedes, that at the time of the accident Moduthagam was traveling with the green light and Stratton went through a red light. It is the plaintiff's position, however, that "[n]otwithstanding that a driver has a green light in his favor, he still has a duty to drive with the care of a prudent person to avoid a collision when danger is discovered, or by the exercise of reasonable care, should have been discovered." The charge against Moduthagam is that he operated his motor vehicle with speed greater than was reasonable, he failed to keep a proper lookout, and he failed to decrease speed on approaching an intersection.

The plaintiff's argument concerning speed is based on the statute (Ill. Rev. Stat. 1967, ch. 95 1/2, par. 146):

§ 49. General speed restrictions. (a) No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; or (2) is greater than the applicable maximum speed limit established by this Section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."

• 1, 2 In our view, the dispositive question is whether the evidence supports an inference that the defendant exceeded the speed limit of 30 miles per hour. The complaint never alleged that the speed limit was exceeded but the failure to so plead does not preclude proof of the fact of excessive speed if the violation was a proximate cause of the injury, and such proof will sustain an allegation of general negligence. (Scally v. Flannery, 292 Ill. App. 349, 11 N.E.2d 123.) At the outset, it must be noted that proof of speed in excess of the speed limit is prima facie evidence of negligence (Daly v. Bant, 122 Ill. App.2d 233, 258 N.E.2d 382) and it is for the jury to determine whether the excessive speed was a proximate cause of the plaintiff's injury. Prignano v. Mastro, 61 Ill. App.2d 65, 72, 209 N.E.2d 12.

No witness testified directly that the defendant exceeded the speed limit. Although the plaintiff argues that the circumstantial evidence, in part, establishes excessive speed, neither party has submitted any authority on the question of the sufficiency of circumstantial evidence to prove excessive speed. There are many cases from other jurisdictions which hold that proof of speed beyond the legal limit may be proved by circumstantial evidence. (Bozman v. State, 177 Md. 151, 9 A.2d 60; Youngs v. Fort, 252 Iowa 939, 109 N.W.2d 230; Swartz v. Dahlquist, 320 Mich. 135, 30 N.W.2d 809; McMinn v. Thompson, 61 N.M. 387, 301 P.2d 326; Brower v. Stolz (N.D.), 121 N.W.2d 624; Bock v. Sellers, 66 S.D. 450, 285 N.W. 437; Mitchell v. Wilkerson, 193 Va. 121, 67 S.E.2d 912; ...


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