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Albaugh v. Cooley

OPINION FILED MAY 28, 1980.

LARRY ALBAUGH, PLAINTIFF-APPELLANT,

v.

THOMAS A. COOLEY, DEFENDANT-APPELLEE.



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

MR. JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE RIZZI delivered this supplemental opinion:

Plaintiff, Larry Albaugh, brought this personal injury action against defendant, Thomas A. Cooley, as a result of an automobile accident. Plaintiff was struck by defendant's automobile while crossing a suburban street in an unmarked crosswalk. The jury returned a verdict in favor of plaintiff for $20,000. However, the jury answered a special interrogatory finding plaintiff guilty of contributory negligence. Judgment was entered in favor of defendant on the jury's answer to the special interrogatory, pursuant to section 65 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 65). We reverse and enter judgment on the general verdict in favor of plaintiff.

The accident occurred on March 15, 1973, at approximately 7:15 p.m. at the intersection of Rohlwing and Campbell Streets in Rolling Meadows, Illinois. At the site of the accident, Rohlwing runs north and south and has one lane of traffic moving in each direction. Campbell runs east to west, but ends at Rohlwing. The intersection is not in a well-lighted area, but there is a street light which arches and extends at an angle over the intersection. At the time of the occurrence, the weather was clear and dry.

Defendant was driving his automobile 25 to 35 m.p.h. in a northerly direction on Rohlwing. The posted speed limit is 35 m.p.h. Plaintiff was walking west on the north side of Campbell. Plaintiff testified that when he arrived at the corner of Campbell and Rohlwing, he waited for several westbound automobiles on Campbell to make a right turn onto Rohlwing. He then looked to his left and saw defendant's automobile one-half block to one block away. Plaintiff began to cross Rohlwing, looking in a westerly direction. When he reached the middle of the street, he looked to his left again and "saw the car was right on top of him." He put his hands up and lunged but was unable to get out of the way of defendant's automobile. The automobile struck him and he landed on the gravel shoulder on the west side of Rohlwing.

A police officer testified that when he arrived at the scene, the plaintiff was "lying on the west side of the roadway at the intersection directly in line with the crosswalk marks." But on cross-examination, the police officer testified that he did not remember whether there was a painted crosswalk at the intersection. The record reflects that there were no painted crosswalk marks.

A woman who was driving an automobile which was stopped at the corner of Campbell and Rohlwing at the time of the accident also testified. She was waiting to make a right turn onto Rohlwing. Her 13-year-old daughter was also in the front seat of the car. The witness testified that as she was traveling west on Campbell, she had seen the plaintiff walking west on Campbell about one-half block from the intersection. She testified that, at the time, plaintiff had a walkie-talkie in his hand "with a long antenna up in the air." She next saw him at the corner, but did not witness the accident. Her 13-year-old daughter testified that she saw plaintiff on the corner, holding what appeared to be a walkie-talkie with its antenna raised toward his head. In another part of her testimony, she states that she saw plaintiff slowly running across Rohlwing before the accident happened. However, she did not see defendant's car before or after the accident and she did not see the defendant's car strike the plaintiff.

Defendant first saw the plaintiff when his automobile was 15 to 20 feet away from him. Defendant testified that his speed at the time was 25 to 30 m.p.h. Defendant swerved to avoid hitting the plaintiff, but the left front fender of the automobile hit him. Defendant testified that there was an automobile facing west on Campbell, waiting to turn onto Rohlwing. Because of the angle of the street, the car's lights were shining in his direction, "causing him trouble seeing" for about 100 feet prior to the impact.

Plaintiff contends that the evidence is insufficient to support a finding of contributory negligence. Defendant contends that "since plaintiff admitted that he did not know how rapidly the vehicle he saw a half block away was approaching him, and as he had a duty to continue to observe it until he could estimate its speed to determine if it was safe to cross, he was not acting with due care for his own safety when he blindly stepped off the curb into the path of the oncoming vehicle without making any effort to keep it under observation to determine if it was in fact safe to cross." On appeal, defendant does not dispute that plaintiff was in an unmarked crosswalk at the time of the occurrence. We agree with plaintiff that the evidence is insufficient to support a finding of contributory negligence.

• 1 When there are no traffic signals at an intersection, the driver of a vehicle must yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway upon which the vehicle is traveling. (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-1002.) Of course, while the law gives pedestrians the right-of-way at crosswalks, it does not absolve them from the duty to exercise ordinary care for their own safety. (Moran v. Gatz (1945), 390 Ill. 478, 485-86, 62 N.E.2d 443, 446.) But, where the pedestrian has such right-of-way, he should not be held guilty of contributory negligence unless it appears that under the circumstances shown, he saw or should have seen the danger of the approaching vehicle in time to avoid being struck. Absent facts to indicate otherwise, it must be assumed that a pedestrian in a crosswalk did not intentionally expose himself to a known danger. If we do not recognize and follow these basic principles, we would not only deprive the pedestrian of his right-of-way but we would be turning the statute around and conferring the right-of-way on the moving vehicle.

In the present case, there are no facts which demonstrate that plaintiff saw or should have seen the danger of the approaching automobile in time to avoid being struck. Plaintiff looked to the left when he was at the curb and saw defendant's automobile one-half block to one block away. He began to cross the street in the crosswalk. At that time, plaintiff had the right to cross the street and rely on the fact that an automobile driver one-half to one block away on a suburban street would be able to see him crossing the street and permit him to complete the crossing without striking him.

• 2 To say that a pedestrian may not cross a suburban street in a crosswalk merely because an automobile is in view at a distance is equivalent to saying that the driver has rights superior to the pedestrian, when the converse is true. Although a pedestrian has a duty to be free from negligence while crossing a street, this does not mean that after having looked for traffic before starting to cross the street, he has a duty to keep a constant lookout for moving vehicles. (Huston v. Chicago Transit Authority (1976), 35 Ill. App.3d 428, 431, 342 N.E.2d 190, 194; see Fox v. Calhoun (1975), 34 Ill. App.3d 336, 341, 340 N.E.2d 125, 128.) He has a right to assume vehicles will yield the right-of-way to him and that they will be operated with reasonable care to avoid hitting him. (See Fox, 34 Ill. App.3d 336, 341, 340 N.E.2d 125, 128; Petersen v. General Rug & Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 58, 77 N.E.2d 58, 64.) Thus, he has a right to a reasonable time and opportunity to complete his crossing, rather than becoming fair game for vehicular traffic. (See Fox, 34 Ill. App.3d 336, 340, 340 N.E.2d 125, 128.) He is not required to constantly turn his head to the left and right.

Defendant emphasizes that the 13-year-old passenger in her mother's automobile testified that she saw plaintiff on the corner holding what appeared to be a walkie-talkie with its antenna raised towards his head. However, there is no evidence that plaintiff was listening to or using the walkie-talkie while crossing the street. Also, there is no evidence that the walkie-talkie distracted the plaintiff's attention in any way. Although defendant testified that he saw plaintiff about two or three feet from the center of the street, he did not testify that plaintiff was using or listening to a walkie-talkie. Defendant merely testified it "appeared that he was holding something in his right hand" before the accident. Certainly, a pedestrian in a crosswalk is not negligent merely because he is holding something in his hand.

Defendant also emphasizes that the 13-year-old witness testified that she saw the plaintiff "slowly running across the street." However, the witness testified that she did not see the accident and she did not see defendant's automobile either before or after the accident. Neither defendant nor plaintiff testified that plaintiff was running slowly or otherwise. Under the circumstances, the statement that plaintiff was "slowly running across the street" cannot support a finding of contributory negligence.

Accordingly, when all of the evidence is viewed in its aspect most favorable to defendant, that evidence so overwhelmingly favors plaintiff on the issue of contributory negligence that no contrary verdict on that issue could ever stand. This conclusion on the issue of contributory negligence leads to the question of whether judgment may be entered on the general verdict notwithstanding the inconsistent answer to the special interrogatory.

• 3 On this issue, defendant maintains that the case is governed by section 65 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 65). That statutory section provides that the trial judge must, on request of any party, submit a written special interrogatory to the jury upon any material question of fact, and when the special finding is inconsistent with the general verdict, the former controls the latter. Because it is mandatory that the answer to the special interrogatory controls the general verdict under this section, according to defendant, judgment cannot be entered on the general verdict if it is inconsistent with the answer to the special interrogatory. (See Borries v. Z. Frank, Inc. (1967), 37 Ill.2d 263, 266, 226 N.E.2d 16, 18; Freeman v. Chicago Transit Authority (1965), 33 Ill.2d 103, 109, 210 N.E.2d 191, 195-96 (Underwood, J., specially concurring); Starbuck v. Chicago, Rock Island & Pacific R.R. Co. (1977), 47 Ill. App.3d 460, 465, 362 N.E.2d 401, 404-05. *fn1 But see Leonard v. Pacific Intermountain Express Co. (1976), 37 Ill. App.3d 995, 1005, 347 N.E.2d 359, 368; Zygadlo v. McCarthy (1974), 17 Ill. App.3d 454, 458, 308 N.E.2d 167, 170.) However, I believe this statutory section is unconstitutional because it violates the constitutional provision of separation of powers.

In examining this legislative enactment, it is clear that it directs how a court should decide cases and circumscribes the power of a judge to apply the law to the facts and circumstances of the case. (Cf. Agran v. Checker Taxi Co. (1952), 412 Ill.2d 145, 149-50, 105 N.E.2d 713, 715-16.) Specifically, it directs that upon request by a party, the trial judge must submit a special interrogatory to the jury, and it legislates that the answer to the special interrogatory controls the general verdict, rather than allowing the trial judge to determine whether a special interrogatory should be given if requested and whether it should control under the facts in the case.

• 4 Special interrogatories and the judicial power of the court to deal with them as part of the trial of a case date back to the practice of early English common law judges. (See Comment, Special Findings and General Verdicts, 18 U. Chi. L. Rev. 321, 322 (1951); Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L.J. 575, 592 (1923).) Thus, special interrogatories are part of the inherent judicial power of the court. (Freeman v. Chicago Transit Authority (1964), 50 Ill. App.2d 125, 138, 200 N.E.2d 128, 135, aff'd (1965), 33 Ill.2d 103, 210 N.E.2d 191; see also Norton v. Volzke (1895), *fn2 158 Ill. 402, 409-10, 41 N.E. 1085, 1087.) This is significant here because it is the undisputed duty of the court to protect its inherent judicial power from encroachment by legislative enactments, and thus preserve an independent judiciary department in our government. Under our system of government, the legislature has power to enact laws governing judicial practice only where they do not infringe upon the inherent judicial powers of the court. (Agran, 412 Ill. 145, 149, 105 N.E.2d 713, 715.) If this principle does not remain inviolate, the constitutional provision for separation of powers will become meaningless.

• 5 Article II, section 1 of the Constitution of Illinois 1970 provides:

"Separation of Powers.

The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another."

In dividing the powers of government into three separate departments, article II, section 1 of the Constitution adheres to a basic principle of constitutional law. Each of the three departments of government is to perform the duties assigned to it, and no department may exercise the powers properly belonging to either of the other two. (Agran, 412 Ill. 145, 148, 105 N.E.2d 713, 715.) Article VI, section 1 of the Constitution vests the judicial power in the courts>. Although the Constitution does not define judicial power, all such power is exclusively granted to the courts>. If the power is judicial in character, it necessarily follows that the legislature is expressly prohibited from exercising it. (People v. Jackson (1977), 69 Ill.2d 252, 256, 371 N.E.2d 602, 604; Agran, 412 Ill. 145, 149, 105 N.E.2d 713, 715.) Rule-making authority to regulate the trial of cases is a power possessed by the supreme court and not by the legislature. *fn3 See Jackson, 69 Ill.2d 252, 256-60, 371 N.E.2d 602, 604-06.

The cases of Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 105 N.E.2d 713, and People v. Jackson (1977), 69 Ill.2d 252, 371 N.E.2d 602, illustrate the principle involved here. In Agran, the court held that section 50a of the Civil Practice Act, as it existed, was unconstitutional because it was a legislative encroachment upon the inherent judicial power to adjudge, determine and render a judgment. Section 50a required the giving of a five-day notice to every attorney of record ...


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