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Newton v. Meissner

OPINION FILED SEPTEMBER 4, 1979.

ROBIN LEE COPPES NEWTON, A MINOR, BY ROBERT O. COPPES, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

HERBERT MEISSNER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. DURHAM, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Robin Lee Coppes Newton, in a negligence action in the circuit court of Cook County, sought damages for injuries she sustained when struck by an automobile driven by defendant Herbert Meissner as she crossed a highway under construction by defendant Englehardt, Inc. The jury returned an $80,000 verdict against both defendants and answered a special interrogatory finding plaintiff not guilty of contributory negligence. After denying both defendants' motions for judgment notwithstanding the verdict and for a new trial, the trial court entered judgment on the verdict.

Although both defendants filed notices of appeal, only defendant Engelhardt submitted briefs. However, this court granted defendant Meissner's motion allowing him to adopt Engelhardt's brief and reply brief as his own. The issues raised on appeal are (1) whether judgment notwithstanding the verdict or in the alternative whether a new trial should be granted in favor of defendant Englehardt; (2) whether plaintiff was guilty of contributory negligence as a matter of law; (3) whether evidence of a prior accident was properly admitted; (4) whether the trial court erred in giving plaintiff's instruction on negligence; and (5) whether the testimony of a certain defense witness was properly excluded.

The accident occurred on September 6, 1971, Labor Day, at approximately 1 p.m. on Cicero Avenue between 152nd Street and 153rd Street in Oak Forest, Illinois. Cicero Avenue, which runs in a north-south direction, is normally a four-lane highway. About one month before the accident, defendant Engelhardt began reconstructing the two lanes on the east side of Cicero, and traffic was condensed into the two lanes on the west side of Cicero which were converted into one northbound and one southbound lane.

Officers Keller and Lexow, the investigating officers, testified that they found the plaintiff lying near the center line of the northbound lane of Cicero Avenue about 150' south of 152nd Street. They explained that 152nd Street was not a through street continuing west of Cicero, but formed a "T" intersection with Cicero on its east side. They stated that there was a stop sign for traffic on 152nd Street but not for traffic on Cicero, and that there were no marked crosswalks at this intersection. Officer Keller testified that the closest traffic control signals regulating traffic on Cicero were located at 149th Street and 157th Street.

The officers testified that defendant Meissner's car was stopped in the middle of the northbound lane about 18'11" behind the plaintiff and skid marks from the defendant's automobile measured 70'6". Officer Lexow explained that the length of these skid marks indicated that defendant's automobile was traveling between 39 and 46 m.p.h. Officer Lexow also testified that at the time of the accident the 35 m.p.h. speed limit along Cicero had not been reduced; that due to the construction some of the 35 m.p.h. speed limit signs had been taken down and mounted on telephone poles and temporary posts; and that signs indicating highway construction were posted at 149th Street and 157th Street. On cross-examination, Officer Lexow stated that Cicero Avenue was a State highway and that the city of Oak Forest could not change the speed limit on Cicero without first petitioning the State for permission since the State was in charge of setting the speed limit and posting and maintaining the signs.

Both officers testified that there were two types of barricades in the construction area, one type was 3' high with blinking markers, and the other type was about 5' high, 8' long. They said that the latter type of barricades were placed parallel to Cicero running along its east edge to prevent cars from falling into the excavation area. Officer Lexow testified that these barricades extended the length of the construction area and also that he noticed piles of dirt but could not testify to their exact locations.

Officer Keller testified that there was a rise or a hill about two blocks south of where plaintiff had been standing. He stated that a person would have to step onto the highway past the barricades in order to view traffic. Since the northbound lane was about 14'5" wide, as opposed to the normal 10' to 12' wide traffic lane, he stated that it would be possible to stand on the highway in front of the barricades and still not be in the way of traffic. Officer Lexow similarly testified that in order for one to see 150' to the south, it was necessary to stand on the highway beyond the barricades, and since the northbound lane was 14' as opposed to the standard 10' lane, it would be possible to do so without being in the way of traffic. Officer Keller testified that at the point where the defendant's car was stopped on the road, there was a barricade to the east of the car's front bumper but he could not remember which type of barricade it was.

Pamela Sullivan Rasmussen testified that on the day of the accident, after she and plaintiff had eaten lunch at the A&W restaurant located on the east side of Cicero, they intended to go to the bowling alley which was located directly across from the A&W on the west side of Cicero. The east side of Cicero was under construction and there were paths to get into driveways. She said between each driveway next to the pavement of the road were 5' high mounds of dirt; "horse-type" barricades were placed in the dirt near every driveway; and larger barricades about 5'7" were placed on the east edge of the road's pavement, parallel to and all along Cicero. She said both she and plaintiff were 5' tall at the time of the accident.

She stated that when she and the plaintiff left the A&W, they walked out onto the driveway path, but that her view of a northbound car was obstructed by a mound of dirt and she had to stand on the highway past the barricades in order to view the traffic. She said that she and plaintiff stood about 1/2' out onto the paved portion of the road and watched traffic for about 15 minutes. She then stepped out far enough past the barricades and saw a white car coming over the hill to the south about a block away. Not seeing any traffic behind the white car, she said, "after this car we can go." She stated that after the white car passed they waited about two minutes before crossing. During this time she said they again looked north and south, checked to see if traffic was coming around the corners at 152nd Street and 153rd Street or from the business parking lots, and after agreeing with plaintiff that it looked clear, the two proceeded to walk across the street. She said that she stepped out about 1 1/2' with the plaintiff when she decided to step back off the street in order to check the time by a clock hanging in the A&W restaurant. After doing so, she stepped back onto the pavement and then saw plaintiff, who was almost to the center line, get hit by a car.

Kathleen Ann Sullivan, Pamela's mother, testified that she lived on the west side of Cicero and worked at a restaurant located on the southeast corner of 153rd Street and Cicero. In order to get to work she said she would walk down the west side of Cicero because there were no barricades on that side of the street and cross at 153rd Street. She stated there were no lights, stop signs, or marked crosswalks at 153rd Street and Cicero. She stated that the east side of Cicero was dug up and the pavement was placed in piles up and down that side of the road. When asked where she would usually cross Cicero, she answered that it depended on where she wanted to go. If she wanted to go to the store, she would cross at a point partially in between the bowling alley and the A&W where there was an opening. She stated there were barricades along the east side of Cicero which came up to her shoulders. She stated that she was 5'1" tall and that it was necessary for her to step out onto the road before she crossed since she could not see over the barricades.

The plaintiff called Lester Kolom, a road construction expert, who testified to administrative regulations having to do with road construction and the safety of vehicular and pedestrian traffic. He stated that at the time of the accident, the vicinity between 147th Street and 159th Street on Cicero Avenue had an average daily traffic volume count of between 13,000 and 14,000 vehicles. He stated that the construction site as it existed at the time of the accident was a high risk area and presented an extremely hazardous situation. Kolom said a contractor has a duty to see that all sign signals and markings are in place, which in a high risk area would include signs warning of construction ahead, reduction in the speed limit, and there should be no visibility obstructions. He stated that the standard barricade height was 4', and the placement and size of the barricades and the presence of dirt piles in the instant case were violations of the General Contractor Standards. He stated that considering the restricted roadway, the construction, the presence of barricades parrallel to the road which in themselves presented visibility obstructions, and the high traffic count in the instant case, the speed limit should have been reduced to 20 m.p.h.

Defendant Meissner, called by plaintiff as an adverse witness, testified that he first saw plaintiff when he was about 150' to 200' south of her as he was driving north on Cicero at a speed of 35 m.p.h. He said plaintiff was standing next to, but not beyond, a barricade on the east side of Cicero. He recalled barricades being present all along the road and stated that he saw plaintiff through the slits of the barricade. Defendant Meissner testified that when he was about 40' to 60' away, plaintiff stepped out onto the highway, and as soon as he saw her walk past the barricade he began to brake. He said plaintiff had taken about three or four steps before he hit her and there was an indentation slightly to the right of the front center of his car which was caused by the impact with plaintiff's body. He stated that he did not sound his horn, nor veer to the left or right before the impact.

In his deposition, defendant Meissner had stated that on the day of the accident the speed limit in the area where the accident occurred was 45 m.p.h. At trial he explained that this was the speed limit before the construction began, and that he did not see any posted speed limit signs on the day of the accident nor on two other occasions prior to the accident when he had driven through the area under construction. He also did not recall seeing signs warning him that the road was narrowing, or to reduce his speed, although he said he did decrease his speed in the construction area. This was contrary to his deposition testimony where he stated that he did not decrease his speed when he entered the construction area. On examination by his own attorney, defendant Meissner stated that as he approached from the south he could see above the barricades plaintiff's head down to just below her shoulders and stated that plaintiff continually looked in a northwest direction.

Plaintiff testified that she could not remember the facts of the accident and explained that the account she gave at her deposition was based on things other people like her parents and friends had told her about the accident. On cross-examination, the defense attorneys read statements from the plaintiff's deposition wherein she testified that she left the A&W with her friend, Pam, and while walking on the driveway in front of the A&W to Cicero, she had an unobstructed view to the left and the right; that when she reached the edge of Cicero she again looked to her left and saw a car on the hilltop and told her friend they could cross as soon as it passed; that as the car neared, it veered in her direction at which time she pushed her friend out of the way and then was hit; and that she began to remember how the accident occurred about six months after she returned home from the hospital, in that things started coming back to her "in dreams and things like that." Plaintiff stated at trial that she did not recall making any of these statements and only vaguely remembered being present at the deposition. Plaintiff testified that she did not tell her attorneys that she had no independent recollection of the accident until sometime after her deposition had been taken but could not remember exactly how long afterward. The plaintiff rested and both defendants made motions for a directed verdict which the trial court denied.

Defendants called Dennis Parker who witnessed the accident after coming out of a bowling alley located on the west side of Cicero directly across the street from the A&W. He said he saw the plaintiff standing with another girl on the east side of Cicero. He said both girls started across the street but the one girl stopped, backed off, and hollered "look out." He then saw plaintiff run in front of defendant's car which he said was traveling 30 to 35 m.p.h. He said when entering the construction area there was a sign indicating construction and the speed limit to be 30 or 35 m.p.h. He stated that there were waist-high horse-type barricades along the edge of the road and taller barricades by the driveways, and that he saw only small piles of dirt.

Edward Kolton, a civil engineer employed by the State of Illinois Department of Transportation, testified he was the resident engineer at the construction site at the time of the accident. He explained that a resident engineer was one who represented the State at a construction site and made sure the job was being done according to State specifications and standards. He said the contract between the State and the contractor includes provisions for the type of signs and barricades which are to be erected at the site. He stated that normally according to the standards, signs warning of the construction are posted, barricades 30" high are erected every 100' throughout the construction area to show people where they should and should not travel, and larger barricades are placed at the beginning of the work site and at entering side streets in order to prevent one from driving directly into the construction site. He stated that barricades were set up in this manner at the time of the accident, and he did not recall piles of dirt alongside the road. He stated that prior to the construction work, the speed limit on Cicero was 35 m.p.h. and was not reduced when the construction work first began. He said neither he nor the general contractor had the authority to change the speed limit, only the Bureau of Traffic Department could.

On cross-examination, Kolton stated that the contractor has the responsibility of barricading the area according to the standards and could request the Bureau of Traffic to change the speed limit. He stated that a few weeks after the accident the speed limit was reduced to 25 m.p.h. He also stated that according to standards, excavated materials could not be deposited at an elevation higher than that of the adjacent roadway.

Wayne Zielsdorf, employed by defendant Englehardt at the time of the accident as a dirt foreman, testified that there were dirt piles present in back of the excavation area but not close to the road.

Raymond Henry Christensen testified that he operated heavy equipment for defendant Engelhardt at the time of the accident; that when pavement was dug up it was loaded into a truck and taken to a dump; and that there were no dirt piles 5' high present along the edge of Cicero. Both Zielsdorf and Christensen stated that the larger barricades were not used on the edge of Cicero but only the smaller "horses" were placed there, and neither of them knew the instant accident had occurred until shortly before the trial.

Ruben Melesio testified that he worked for a company that manufactured, rented, and sold traffic protection equipment, and at the time of the accident his company rented barricades to defendant Engelhardt but could not say what type. He stated that he visited the construction site on September 1, 1971, and saw the smaller "horse-type" barricades 39" high alongside the road and the larger barricades were off the side of the road.

I.

Defendant Engelhardt first contends that a judgment notwithstanding the verdict should be entered in its favor because no evidence was presented which showed that plaintiff's ...


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