APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
This appeal arises out of an automobile accident that occurred in Lombard, Illinois, on December 20, 1975. After hearing the evidence, a Du Page County jury returned a verdict in favor of the defendant-appellee, Linda Fleischman, hereafter the defendant. By way of a special interrogatory the jury also found the plaintiff-appellant, Michael Ryan, hereafter the plaintiff, to be contributorily negligent. The plaintiff has appealed, raising three possible grounds for reversing the judgment of the trial court. First, he contends the jury's verdict was contrary to the manifest weight of the evidence. The plaintiff's second argument for reversal is that the jury was improperly instructed. Thirdly, the plaintiff asserts the trial court should have granted his motion for a judgment notwithstanding the verdict. The defendant contends that the plaintiff did not properly preserve for review the question of whether or not the jury's verdict was contrary to the manifest weight of the evidence.
After reviewing the record and weighing the arguments presented, we are of the opinion that the decision of the circuit court of Du Page County must be reversed and the cause remanded for a new trial.
Certain basic facts of this accident are undisputed. The accident took place on Saturday, December 20, 1975, at approximately 6 p.m. at the intersection of Ogden Avenue and Belmont Street in Lombard, Illinois. The night was clear and the pavement was dry. At that point both Ogden Avenue, which has a 40-mile-per-hour speed limit, and Belmont Street have four lanes. The intersection is controlled by a traffic signal which was in working order that evening. Immediately prior to the accident, the defendant was stopped in the eastbound lane of Ogden Avenue nearest the center line, waiting to make a left turn. The plaintiff was westbound on Ogden Avenue, approaching the intersection.
There are two facts in dispute. First, there is the question of precisely in which lane the collision occurred. The defendant testified that she did not remember even beginning to make her left turn. The plaintiff asserts that he was in the westbound lane nearest the curb when the defendant made a sudden turn in front of him, which caused him to collide with the defendant despite his best efforts to avoid the accident. Mr. John Lloyd, a nonparty eyewitness, testified that the defendant had started a left turn, had proceeded three or four feet into the plaintiff's lane, when she came to a stop. Immediately thereafter, the impact between the two vehicles occurred. However, Mr. Lloyd was not certain in which lane the plaintiff was driving. The plaintiff's version that he was in the lane nearest the curb drew some support from Officer Edward Springer of the Downers Grove police department. Officer Springer, who investigated the accident, testified that the majority of the debris from the collision was found in the westbound lane of Ogden Avenue nearest the curb.
The second of the two disputed facts concerns the status of the traffic signal at the intersection. The signal was working and turned yellow prior to the collision. Just how long it had been yellow is the question that is in dispute. The plaintiff asserts it must have just turned yellow because it was green when he last noted the light when he was 25-50 feet from the intersection, traveling 30-35 miles per hour. The defendant testified the light had been yellow for approximately 10 seconds before the collision. Mr. Lloyd, the by-stander eyewitness, testified that three to four seconds passed between the time the defendant commenced her turn and the impact between the two vehicles, which occurred while the light was yellow.
After some additional testimony on the extent of the plaintiff's injury, the jury was instructed and retired to deliberate its verdict. Among the instructions given were two to which the plaintiff objected, the first of which was Defendant's Instruction No. 1, which reads as follows:
"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
The driver of a vehicle intending to turn to the left within an intersection * * * shall yield the right of way to any vehicle approaching from the opposite direction which is so close as to constitute an immediate hazard * * *
The fact that a vehicle has the right of way does not relieve its driver from the duty to exercise ordinary care in approaching, entering and driving through the intersection.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all of the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence."
This instruction is a modified version of Illinois Pattern Jury Instructions, Civil, No. 60.01. The modification is a paragraph extracted from IPI Civil No. 70.02.
The second instruction to which the plaintiff objected was Defendant's No. 4, which reads as follows:
"There was in force in the State of Illinois at the time of the occurrence in question a certain ...