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Gale v. Hoekstra

OPINION FILED APRIL 13, 1978.

MICHAEL GALE, PLAINTIFF-APPELLANT,

v.

LINDA HOEKSTRA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS P. BUTLER, Judge, presiding. MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The plaintiff, having been struck by the defendant's car while he was walking along the wrong side of the road, *fn1 appeals from a jury verdict for the defendant claiming error in that:

(1) the trial judge, after the jury had retired, in response to a question from the jury, and in the absence of counsel who had elected not to be present, suggested there were two construction sites along the side of the road;

(2) the trial judge, after the jury had returned a general verdict finding the defendant not liable and a special verdict finding the plaintiff not guilty of contributory negligence, suggested that the two verdicts should be consistent, whereupon the jury changed the finding in the special verdict;

(3) the trial court permitted a part-time policeman who had investigated between 100 and 200 accidents prior to the time of this accident to testify as a reconstruction witness, in that he was permitted to testify that he found no tire marks on the shoulder of the road and that he would have expected to find some if the defendant had driven onto the shoulder.

No other errors were alleged in the plaintiff's principal brief.

Under the facts of the case we find no prejudicial error and affirm.

The plaintiff, Michael Gale, was struck by the defendant's car on November 3, 1972 at about 7:30 p.m., while he was walking north along the east side of Central Avenue, an unlighted street in the City of Oak Forest. He and a friend of his, Brian Schacht, were walking north along Central because Michael's automobile had broken down at 163rd and Central. The accident occurred at about 157th and Central. Michael testified that it was not raining at the time of the accident although it had been drizzling earlier. Later he admitted that in an earlier statement he had said it was kind of misty. He was wearing a blue fluorescent shirt with a pair of dark blue dress slacks. He did not indicate whether he was wearing a jacket. There was construction on the west side of Central at 159th Street extending about 1 1/2 or 2 blocks. The ground was all dug up and there were wooden horses with blinking lights. There was absolutely no construction on the east side. At 159th, Central Avenue is a four-lane street but it narrows to two lanes before 157th. It also runs uphill. Michael testified that he walked along the apron on the east side of the road until the road narrowed, then stepped off onto the shoulder. The shoulder of Central at 157th was about 6 1/2 or 7 feet wide and was made up of crushed rock and dirt. Michael stated he never walked on the paved section after it became two lanes. He was about five or six feet north of the point where the apron disappeared when he was struck. This was about 10 to 20 feet south of the top of the hill. He had stopped because he had stepped in some mud and was trying to shake it off his shoe; he was on the shoulder about two feet from the side of the road. Brian was walking about six feet ahead of him and a little to the right. Michael never saw the plaintiff's car before he was hit; he heard no horn nor screeching of brakes. He was thrown about 50 feet or more. On cross-examination he agreed that the east shoulder was muddy. He needed glasses to see distances but was not wearing them at the time; they were in his pocket.

Brian Schacht corroborated Michael's testimony that they had walked along Central after Michael's car broke down; they had walked on the east side along the apron and then on the shoulder; it was not raining at the time although it had rained earlier; the impact occurred before the crest of the hill and Michael was wearing a light blue shirt and black or blue pants. Brian testified he had been walking in front of Michael but turned when he was struck by something which turned out to be dirt Michael was kicking. At that moment Michael was hit. Michael was on the dirt portion of the road when he was struck. When the automobile struck Michael it was two or three feet off the road. Brian heard no horn nor screeching of brakes. There was no southbound traffic in the area at the time of the impact. Brian also testified that when the police arrived later one parked in front of Michael and one parked in back, on the shoulder of the road.

On cross-examination Brian testified that there was no artificial lighting in the area; the houses were set away from the area; and on the east side, there were trees about ten or fifteen feet east of the road and then a field, nothing else. Before he turned around to look at Michael, Brian was two or three feet east of the edge of the roadway. Michael was maybe two feet west of him, possibly more.

Michael's mother testified that Michael had been wearing a light blue shirt and a dark blue pair of pants before he left home the evening of the accident. His boots after the accident were covered with mud. Michael did own a pair of blue jeans and a blue denim jacket.

The hospital records indicate Michael stated to the doctor that he was hit while walking in the street.

Linda Hoekstra, the defendant, testified that before the accident she had been shopping at the Jewel, which is at Central and 159th. When she drove out of the parking lot, she turned left and proceeded up Central. Since she had been to the Jewel before, she was relatively familiar with the area. It was raining and she had her windshield wipers on. The car headlights were on dim. The car radio was on. The pavement was wet. Her fastest speed before the accident was 35 m.p.h., which was below the posted speed limit. There was no lighting in the area either from artificial light or from houses. She could not see the two pedestrians until the car reached the crest of the hill where the road begins to level off. At that time her car was on the right-hand side of the northbound lane. (Central was already reduced from four to two lanes.) When she first saw Michael he was standing or walking in the roadway about 15 feet from the point where the road leveled off. His companion was on the shoulder some distance north. She applied her brakes slowly and steadily — she did not jam her brakes because then the car would have skidded — and she moved the car as far left as she could. She could not move it beyond the center line because there were several cars in the southbound lane. She did not sound her horn. There was no time to use the headlight blinkers. The car had slowed to about 20 m.p.h. by the time it struck Michael about three to five seconds after she first saw him. He was still on the roadway, about two feet from the east side of the pavement. At no time between the time she first saw Michael and the time of the impact did the lights show a reflection of anyone's face. Michael was wearing a navy denim jacket with long sleeves and dark pants. She did not notice what he had on underneath the jacket, nor did she remember what his companion was wearing. After her car struck Michael, Linda stopped it some distance ahead. Once stopped she pulled off onto the shoulder and turned the ignition off. When she pulled off onto the shoulder she felt a slight bump. She did not feel such a bump before the impact. At no time before the impact was she off the roadway.

After she turned the ignition off, Linda got out and started walking towards the boys. Michael's companion said she should call the police and an ambulance. A man at the second house at which she stopped first called both police and an ambulance and then drove his car across the highway and parked it, with flashers on, just south of Michael who was sitting on the shoulder. She once stated the gentleman parked on the shoulder, but later said she did not remember if he parked on the shoulder or not. Two police vehicles came; one parked behind her car and one parked on the road. The police officers investigated for skid marks using flashlights.

Officer William Nowicki also testified for the defendant. He and some other officers arrived at the accident scene in two squad cars in response to the call. Officer Nowicki had worked approximately 20 hours per week as a police officer for 5 1/2 years. He performed routine patrol work and had received special training in schools run by the F.B.I., the city of Oak Forest and the State's Attorney of Cook County. He had investigated between 100 and 200 accidents at the time this accident occurred.

At the accident scene he found the plaintiff lying just beyond the crest of the hill on the shoulder, approximately 100 feet north of the point where the rising slope of the roadway leveled off. The defendant was parked 120 to 200 feet beyond him. Nowicki believed Michael was wearing a black jacket; he was not sure of the color of his pants.

It was dark in the area and it was raining. The shoulder was of soft gravel. There may have been some mud mixed in because there was construction a little further south of the area. They were widening Central Avenue about 200 feet south of 157th Street from two lanes to four lanes and ...


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