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Hartigan v. Robertson

OPINION FILED AUGUST 18, 1980.

DONNA HARTIGAN, PLAINTIFF-APPELLEE,

v.

HUGH ROBERTSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALFRED L. PEZMAN, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Donna Hartigan (plaintiff) brought suit to recover damages for personal injuries arising from an automobile accident with Hugh Robertson (defendant). The jury returned a verdict in favor of plaintiff for $50,000. Defendant appeals.

At about 4 p.m. on November 2, 1973, plaintiff was driving east on Dundee Road in Northbrook, Illinois. Shortly west of its intersection with Skokie Boulevard, Dundee Road consists of two eastbound and two westbound lanes. Immediately to the west of the intersection of Dundee Road and Skokie Boulevard the lanes are divided by a median raised curb. Farther to the west the raised curb becomes a "rumble strip which a vehicle can go over without damaging." There is a traffic light at the intersection of Skokie Boulevard and Dundee Road. The posted speed limit is 45 miles per hour.

Plaintiff drove in the inner, left lane at 40 to 45 miles per hour. She intended to turn left and proceed north on Skokie Boulevard. She began to decrease her speed 1 1/2 blocks before the intersection. At 35 miles per hour, plaintiff observed defendant's car some four car lengths ahead. Defendant was moving slowly to the north in the driveway of Bojan's Auto Body Shop. The driveway was south of and perpendicular to the right, eastbound lane. Defendant intended to cross the two eastbound lanes and turn left to go west on Dundee Road.

After seeing defendant's car, plaintiff decreased her speed again and began "braking harder." She kept defendant's car in "continuous observation." Defendant's car entered the right lane. Plaintiff honked the horn, but defendant continued to move. Plaintiff noticed defendant's car moved into her lane going "north and west." Defendant was "making a left turn." The collision occurred in the left lane where plaintiff was. Plaintiff testified, "The point of impact occurred where the raised median starts and where you can still go over that bump in the road." The right front section of plaintiff's car was struck by the left front section of defendant's car. Plaintiff then told defendant, "I'm okay. I'm really shaken" and "I could not stop in time."

Defendant, then 82 years old, testified prior to the accident he was at a "dead stop" in the driveway of Bojan's Auto Body Shop. Defendant testified, "There were a few cars coming along." When he looked to the left, "there wasn't a thing in sight." To the right, the stop light at Skokie Boulevard was red. Defendant stated, "Then I proceeded and when I got on the outer lane, I looked again and this man stopped to let me go through. I had my directional light on for a left turn." He was going two or three miles per hour. As he turned left, defendant testified, he "couldn't see anything. The sun was right in my face." Then he collided with plaintiff's car. Defendant testified he was attempting to go to the left or west on Dundee Road to Waukegan Road. That was his route to his home.

Defendant first contends this case is close on the facts and the jury might have decided either way. Defendant cites several errors in the trial which "tip the scales in favor of the successful party" and thus require a reversal.

We disagree. In our opinion the evidence of defendant's negligence is strong beyond doubt. Plaintiff testified traffic conditions on Dundee Road were "busy." Defendant testified there were a few cars and one yielded to let him cross in a northerly direction. Defendant, despite being blinded by the sun, emerged from a driveway in an effort to proceed across two eastbound lanes of traffic in a northwesterly direction so that he could cross the median and go west on Dundee Road. There was evidence defendant could not go due north across Dundee Road at that point without traversing to the west. Photos in evidence show a raised median curb between the eastbound and westbound lanes immediately north of Bojan's Auto Body shop. Plaintiff testified defendant had to go north and then west over the median strip. The photographs also show a lower and broader median strip, or "rumble strip," in the area somewhat west of the body shop. Defendant had his left turn signal flashing to show his intention to proceed west on the eastbound lanes.

Section 11-906 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-906) provides:

"The driver of a vehicle about to enter or cross a highway from an alley, building, private road or driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered."

Similarly, section 11-1205 (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-1205) provides:

"The driver of a vehicle emerging from an alley, building, private road or driveway within an urban area shall stop such vehicle immediately prior to driving into the sidewalk area * * *, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered * * *, and upon entering the roadway shall yield the right-of-way to all vehicles approaching on such roadway."

• 1 Defendant thus had a clear statutory duty to yield to all oncoming traffic. In addition, defendant conceded he was partially blinded by the sun. If so, it was his duty to avoid inflicting injury on one who might be using the street while defendant was unable to see. Proceeding without vision has been aptly described as "negligence as a matter of law." (Barth v. Reichert (1962), 34 Ill. App.2d 472, 478, 181 N.E.2d 609. See also Kirby v. Swedberg (1969), 117 Ill. App.2d 217, 223-24, 253 N.E.2d 699.) In Duffy v. Cortesi (1954), 2 Ill.2d 511, 518, 119 N.E.2d 241, a number of cases from Illinois and other jurisdictions are cited for this point.

Defendant cites cases from Minnesota, Kansas and Texas as support for his statement that "A driver momentarily blinded by the sun is not negligent as a matter of law." We need not and we expressly refrain from passing on this issue. The sole question before us at this point is the degree to which the verdict is supported by the evidence. In addition, the jury returned a special interrogatory finding plaintiff not guilty of contributory negligence. In both instances the jury acted properly. Plaintiff's statement of her inability to stop in time was truthful and did not constitute an admission of contributory negligence. The evidence in support of the verdict and the interrogatory is so strong that contrary results were hardly possible.

• 2 Defendant contends plaintiff's attorney pre-educated and indoctrinated the prospective jurors. One of defendant's principal criticisms is the use of the word "victim" by plaintiff's trial attorney. Our examination of the record shows this word was used the first time without objection. On its second and apparently ...


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