Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Rock Island
Couty, the Hon. Paul E. Rink, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Billy Sangster, a minor, by William Sangster, his father, and the father individually, filed a complaint in the circuit court of Rock Island County to recover damages from defendant, Albert J. Van Hecke, resulting from a highway collision between the car driven by defendant and the bicycle upon which the minor plaintiff was riding. At the conclusion of a two-day trial the parties stipulated that the jury could return a sealed verdict in the absence of counsel and the judge. When opened subsequent to the discharge of the jury, only the special interrogatory inquiring whether Billy Sangster had failed to exercise ordinary care had been signed by the jurors, and it had been answered affirmatively. None of the six tendered forms of general verdicts had been executed. The trial court entered judgment in favor of defendant, and plaintiffs appealed. The Appellate Court for the Third District reversed (41 Ill. App.3d 5) and remanded for a new trial. We allowed defendant's petition for leave to appeal.
No question is raised regarding the instructions given. Among them were the following: Plaintiff's instruction No. 8 (Illinois Pattern Jury Instruction (IPI), Civil No. 1.06 (2d ed 1971)):
"Involved in this lawsuit are two distinct claims, one by the child who seeks damages for his injuries, and the other by his father who seeks compensation for money spent or amounts for which he has become liable for reasonably necessary doctor and hospital bills.
If you should find that the child's conduct amounted to contributory negligence, then, even if the parent was innocent of such conduct, neither the parent nor the child may recover. If you should find that the child was not guilty of contributory negligence but the parent was, the defense of contributory negligence is good as against the parent, but it is not good against the child and does not prevent recovery by the child if he is otherwise entitled to recover."
Defendant's instruction No. 11 (IPI Civil No. 10.03 (modified)):
"It was the duty of the minor plaintiff, before and at the time of the occurrence, to use ordinary care, as defined for you in these instructions, for his own safety. That means it was the duty of the minor plaintiff to be free from contributory negligence."
Defendant's instruction No. 12 (IPI Civil No. 11.01 (modified)):
"When I use the expression `contributory negligence,' I mean negligence on the part of the minor plaintiff, as defined for you in these instructions, that proximately contributed to cause the alleged injury to the minor plaintiff."
Defendant's instruction No. 16 (IPI Civil No. 21.02 (modified)) in part stated:
"Each plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff before and at the time of the occurrence was using ordinary care for his own safety and the safety of his property."
The special interrogatory was executed in the following fashion:
The jury will, from the evidence and under the instructions of the court, answer the following interrogatory by writing under the question, and in the space provided therefor, either "Yes" or "No." Each juror will ...