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Kirshenbaum v. City of Chicago

OPINION FILED OCTOBER 21, 1976.

REBECCA KIRSHENBAUM, ADM'RX OF THE ESTATE OF HARRY KIRSHENBAUM, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY G. HERSHENSON, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

At 6:30 in the morning, a Chicago police officer named Keith DeRobertis saw a speeding automobile going west on Granville Avenue, a Chicago stop street. He followed the auto in his patrol car for some 11 blocks at a speed of 40 miles an hour in a residential area where the speed limit was 30 miles an hour. At Rockwell, a north and south street, he crashed into a southbound auto which had stopped at Granville before proceeding into the intersection. Harry Kirshenbaum, the driver of the southbound auto, was killed and his two passengers, Ludwig Kogut and Maximilian Musielak, were injured.

Kirshenbaum's widow, the administratrix of his estate, and the two passengers sued the City of Chicago and DeRobertis. The defendants were charged in an amended complaint with willfully and wantonly operating the patrol car without keeping a sufficient lookout for other vehicles, with operating it at an unreasonable speed under existing traffic conditions and with driving it into an intersection without sounding a warning to other vehicles.

This case comes to our court with an unusual procedural background. It was tried before a judge who found for the defendants. The plaintiffs moved for a new trial and the judge granted their motion. The defendants sought leave to appeal from the order granting a new trial, but their request was denied. (App. Ct. Order #58926, February 14, 1976.) The case was then assigned to the judge from whom this appeal is taken. The parties stipulated that the case would be submitted to the second judge on the record made in the first trial. No witnesses were called and no new evidence was adduced. The second judge held for the plaintiffs. He found the defendants guilty of willful and wanton negligence and entered judgments of $65,000 for the administratrix, $8,250 for Kogut and $3,000 for Musielak.

• 1 In their appeal the defendants make the novel contention that because the first judge was the only one who heard the witnesses testify, the second judge was bound by his finding and that it should prevail in this court. There is no presumption, under the procedural pattern followed in this case, that the first judge was correct in finding for the defendants and certainly none that his finding bound the second judge or binds this court in the re-evaluation of the evidence. In granting the plaintiffs' motion for a new trial, the first judge did not specify his reason for doing so. The plaintiffs presented eight grounds in support of their motion; five of them dealt with the weight of the evidence and three with trial errors. For all we know, the new trial may have been granted because the judge felt he had erred in weighing the evidence.

In any event, the second trial was a new trial and the second judge was free to make whatever decision he thought proper. But since he did not hear or see the witnesses, he was in no better position to pass on the evidence than is this court; so we may also after examining the record make an independent finding concerning the facts. Inter-Insurance Exchange v. Travelers Indemnity Co. (1965), 57 Ill. App.2d 17, 206 N.E.2d 518.

At the coroner's inquest into the cause of Kirshenbaum's death, Officer DeRobertis testified that he was about 200 feet behind the auto he was pursuing on Granville at all times and traveling at the same speed — 40 miles per hour in a 30-mile-per-hour zone. He said he never used his siren and only gave some "short raps" on his horn as he approached the Rockwell intersection. He said, however, that he had turned on the car's blue "mars" light and spotlight before reaching Rockwell. He said that nothing obstructed his view of the Rockwell intersection except cars parked bumper-to-bumper on the north side of Granville east of Rockwell and that he saw the Kirshenbaum auto pull away from the stop sign at Granville a split second before he crashed into it. He said he had taken his foot off the gas pedal and was about to put on the brake when the collision occurred; that because he had taken his foot off the gas pedal the back pressure of the engine slowed his car down before the impact.

His testimony changed considerably at the trial. DeRobertis now said that he began tapping his horn three blocks east of Rockwell, that his speed had decreased substantially to 30 miles an hour or below, that he looked north at Rockwell but did not see anything, and that his car was struck by Kirshenbaum's auto.

On cross-examination he stated that the sun was up and admitted that Kirshenbaum would have looked into the sun if he had been looking to the east — the direction DeRobertis was coming from. He also stated that when a speeding vehicle is chased the mars light must be turned on, but that it is not necessary to sound the siren when stopping a traffic violator.

Outside of Kogut, who woke up in a hospital and did not know how the accident occurred, and Musielak, who testified that the Kirshenbaum auto stopped before starting across Granville and that a police car ran into it, the only eyewitness was DeRobertis, himself. However, a few nearby residents saw the two vehicles right after the crash. All who testified on the subject said they heard no horn prior to the collision. They disagree whether the blue light on top of the patrol car was operating and gave contradictory reports as to whether DeRobertis remained inside the car or left it.

One witness, a school teacher, ran to a window as soon as she heard the crash. The patrol car was west of Rockwell on the south side of Granville. She saw a policeman get out of the car, walk over to the auto that was smashed, look into it and return to the police car. Seconds later, she saw the mars light, which had not been on before, go on.

Section 12-601(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 12-601(b)) states that:

"* * * Any authorized emergency vehicle * * * may be equipped with a siren * * * but such siren * * * shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law in either of which events the driver of such vehicle shall sound such siren * * * when necessary to warn pedestrians and other drivers of the approach thereof."

The parties agree that the issue in this litigation is whether section 12-601(b) required DeRobertis to sound his siren and, if so, whether his failure to do so ...


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