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Schultz v. Whitney

OPINION FILED AUGUST 18, 1980.

JOYCE SCHULTZ ET AL., PLAINTIFFS-APPELLANTS,

v.

L.B. WHITNEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN M. BREEN, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the circuit court of Cook County in favor of the defendant, L.B. Whitney, in a personal injury action alleging negligence on the part of said defendant. This judgment was entered after Joyce Schultz and Herbert Schultz received an adverse jury finding.

The issues presented for review are: (1) whether the verdicts against the plaintiffs and the jury's answer to the special interrogatory are contrary to the manifest weight of the evidence; (2) whether the trial court erred in submitting the issue of intoxication to the jury; and (3) whether counsel for defendant confused the jury as to the contributory negligence of the plaintiff and passenger, Joyce Schultz.

Mr. Schultz testified, at trial, that on the day in question, May 7, 1977, the only alcohol he had was a couple of cocktails at about 3 in the afternoon. Later, he and Mrs. Schultz had spent the evening at the home of his brother. Mr. and Mrs. Schultz left his brother's house at about 10:15 in the evening. Mrs. Schultz was seated on the passenger side of the seat, near the door. Mr. Schultz was proceeding up an entrance ramp heading south on Fullerton going onto Lake Shore Drive. The traffic flow on Lake Shore Drive was about medium at the time. The entrance ramp runs almost parallel to the southbound lanes with very little angle.

As he proceeded up the entrance ramp Mr. Schultz was going about 10 miles per hour. As he proceeded toward the point where he would merge with the southbound traffic, Mr. Schultz began to slow down. His right foot was riding the brake and he felt a jolt. He did not recall having a conversation with the driver of the bus that struck them. He was feeling somewhat stunned from the accident.

Mr. Lawrence Whitney, defendant, testified that at the time in question he was operating a bus owned by the Chicago Transit Authority. He was proceeding on the Fullerton entrance ramp to the southbound lanes of Lake Shore Drive, and noticed a car about halfway up the ramp. The car was being driven by the plaintiff, Herbert Schultz, going very slowly, or completely stopped on the left side of the ramp. Mr. Whitney braked when he saw the car, and proceeded ahead slowly, intending to pull around the car on the right hand side. The car started up again and, as it approached the end of the ramp, the driver slammed on his brakes and came to a sudden stop. Mr. Whitney slammed on his brakes but collided with the car. After the collision, the driver of the car, Herbert Schultz, got out of the car staggering and spoke to Mr. Whitney in a loud slurred voice, telling Mr. Whitney, "You cut me off at Diversey." Mr. Whitney was of the opinion that there was no reason for Mr. Schultz to stop suddenly and that Mr. Schultz was under the influence of alcohol.

Mrs. Schultz testified that she was riding as a passenger when the accident occurred. As they were proceeding up the ramp, they weren't going over five miles an hour. At the end of the ramp, her husband started to slow down. She stated that her husband did not have two beers at his brother's home. On cross-examination Mrs. Schultz was reminded of her discovery deposition, and she remembered the deposition. She admitted giving the answers stated in the following deposition questions and answers:

"Q. Did your husband have anything to drink while at your brother-in-law's house?

A. He may have had a couple of drinks.

Q. Do you remember what kind of drinks those were?

A. Well, I think he probably had a beer or two because that's all they had in their home.

Q. A couple of beers?

A. Yes."

The jury returned a verdict for the defendant and against both plaintiffs and judgment was entered on the verdict. A special interrogatory found that the plaintiff, Herbert Schultz, was guilty of contributory ...


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