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Allison v. Davies





APPEAL from the Circuit Court of Peoria County; the Hon. ALBERT PUCCI, Judge, presiding.


Plaintiff brought an action for personal injuries suffered when he was struck by an auto while standing next to a vehicle he was about to enter. He appeals from the judgment entered in favor of defendants after the jury returned a special interrogatory finding plaintiff guilty of contributory negligence.

During the evening of May 18, 1974, plaintiff and four others spent "an evening of merriment" together, visiting four different bars between 8 p.m. and 3:45 a.m., and traveling in a two-door car driven by defendant James B. Head. Plaintiff testified that he had six to eight drinks during that time. As the group left an East Peoria tap in the rain, Head pulled his car partially up on the sidewalk with the right side and rear of the auto partially extending into the street. Three of the group got into the car, and plaintiff, who had stayed behind to pay the bill, came out and went around the car to get in from the street side. Defendant John Davies was driving south on Main Street and struck plaintiff, inflicting serious injuries.

At the conclusion of the trial, the jury returned a special interrogatory finding plaintiff guilty of contributory negligence along with a general verdict finding Davies not guilty but finding Head liable for damages of $10,000. The trial court set aside the verdict against Head and entered judgment for both defendants based upon the special interrogatory. The plaintiff appeals from this judgment on the ground that allegedly erroneous rulings of the trial court on the evidence and instructions denied him a fair trial.

• 1 It is well established that a special interrogatory controls a general verdict. (Ill. Rev. Stat. 1973, ch. 110, par. 65; Borries v. Z. Frank, Inc. (1967), 37 Ill.2d 263, 226 N.E.2d 16.) It could be argued that the jury may have been confused in finding that contributory negligence on the part of the plaintiff was harmless and was not affected by the determination of the jury in awarding damages as against defendant Head. Perhaps this was a practical application of the doctrine of comparative negligence; however, we believe that a decision to apply theories of comparative negligence in the instant case would require substantive and procedural formulations which are best suited to legislative action. These particular issues were fully considered by our supreme court in the case of Maki v. Frelk (1968), 40 Ill.2d 193, 239 N.E.2d 445, where the court held that a change in the basic tort theory of contributory negligence by adoption of a rule of comparative negligence "should be made by the legislature rather than by the court."

• 2 The first contention of the plaintiff is that the court erred in admitting testimony of the number of drinks consumed by plaintiff prior to his injury as evidence of his contributory negligence. Defendants claim that the supporting evidence of intoxication was sufficient to justify admission of evidence of drinking. We recognize the general rule that drinking an alcoholic beverage does not of itself raise the question of intoxication which must be proved by the evidence and testimony of witnesses. As the court said in Shore v. Turman (4th Dist. 1965), 63 Ill. App.2d 315, 323, 210 N.E.2d 232:

"Drinking, standing alone, cannot be equated with intoxication, nor can the use of alcoholic liquor, standing alone, characterize a person as intoxicated."

The defendant Davies relies upon the testimony of one member of the group, Ann Tucker, who said in a deposition and testified later for defendant, that plaintiff "was feeling no pain," that he "was * * * feeling happy" and that he was possibly "feeling less pain" than defendant Head. This, it is argued, is sufficient evidence tending to show intoxication to justify admission of testimony that plaintiff consumed six or eight drinks during the evening.

Plaintiff contends that Tucker's testimony that plaintiff was "feeling no pain" does not necessarily equate with intoxication and under French v. City of Springfield (4th Dist. 1972), 5 Ill. App.3d 368, 283 N.E.2d 18, opinion testimony must be phrased in terms of intoxication. In French, a doctor testified that to the extent there is measurable alcohol in a person's blood, that person was under the influence of alcohol. The appellate court held that the test is not whether the person was "under the influence," but whether or not he was intoxicated within the definition of that term as contained in IPI Civil No. 150.15 (2d ed. 1971) revised. That court went further in stating the trial court erred because the jury had not been instructed on the issue of intoxication since the lack of these instructions left the jury in a complete vacuum as to how it was to deal with the evidence. (5 Ill. App.3d 368, 376-77.) It appears to us that the court in French was saying that proof of consumption is insufficient unless there is some evidence to show that the drinking of alcohol resulted in a diminishment of a person's ability to think and act with ordinary care, as per IPI Civil No. 150.15 (2d ed. 1971).

A similar situation was discussed in Wilson v. Parker (2d Dist. 1971), 132 Ill. App.2d 5, 269 N.E.2d 523, where plaintiff was a passenger in a car struck by defendant. Plaintiff appealed a jury verdict for defendant, claiming it was error for the trial court to instruct the jury regarding the intoxication of plaintiff because there was insufficient evidence in the record. The appellate court affirmed, holding that the testimony of plaintiff that he had four to five beers, plus the testimony of a fellow passenger that plaintiff "wasn't really drunk where he did not know what he was doing" was sufficient. The court went on to say: "This certainly created an issue to be presented to the jury and the instruction [IPI Civil No. 12.01] was properly given." 132 Ill. App.2d 5, 9, 269 N.E.2d 523, 526.

Again, a similar issue arose in Doria v. Costello (1st Dist. 1974), 22 Ill. App.3d 505, 318 N.E.2d 40, where the reviewing court, in affirming a verdict and judgment for defendants, found no error in the admission of a policeman's testimony that he thought plaintiff "was under the influence" based on the expression on his face, the fact that he had a few drinks and seemed carefree. See also Weiner v. Trasatti (1st Dist. 1974), 19 Ill. App.3d 240, 311 N.E.2d 313.

Over plaintiff's objection, defendant Davies' instructions No. 4, IPI Civil No. 12.01 (2d ed. 1971) and No. 8, IPI Civil No. 150.15 (2d ed. 1971) were given. They are as follows:

Defendant Davies' Instruction No. 4 (IPI Civil No. 12.01 (2d ed. 1971)):

"Whether or not a person involved in the occurrence was intoxicated at the time is a proper question for the jury to consider, together with other facts and circumstances in evidence in determining whether or not he was contributorily negligent. Intoxication is no excuse for failure to act as a reasonably careful person would ...

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