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Malpica v. Sebastian

OPINION FILED AUGUST 10, 1981.

JOSEFA MALPICA, PLAINTIFF-APPELLANT,

v.

DAVID SEBASTIAN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY S. STARK, Judge, presiding. MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

In this personal injury action brought by Josefa Malpica (plaintiff) against David Sebastian (defendant), a jury returned a verdict for defendant and a special interrogatory finding plaintiff guilty of contributory negligence. Plaintiff appeals.

Plaintiff, a pedestrian, was struck by an automobile. Diversey is an east-west street. Diversey has four traffic lanes. The two outside lanes are used for parking. The two inside lanes carry traffic in both directions. The center of Diversey is marked by a yellow strip.

Rockwell runs north and south. It is 2600 west. Western Avenue is approximately two blocks east. California is to the west of Rockwell at 2800. About one-half a block west of Rockwell there is a railroad viaduct. Diversey dips slightly there and there are ramps to and from the Kennedy Expressway. There are traffic lights at the Kennedy ramps. There are additional traffic lights at the Western Avenue intersection. All of these traffic lights may be seen from the Rockwell intersection.

Rockwell does not cross Diversey in a straight line. The portion of Rockwell running north from Diversey is east of the portion of Rockwell running south from the south line of Diversey. There is a marked crosswalk over Diversey. It runs at a slight diagonal from the west line of Rockwell northeast to the north side of Diversey. There is no safety island at the intersection. Public transportation heading east stops on the southwest corner of Diversey and Rockwell.

Plaintiff testified through an interpreter. On Sunday, December 29, 1974, she left her work at O'Hare Airport at 5 p.m. She traveled by public transportation to the corner of Rockwell and Diversey. About 7:30 or 8 p.m., she alighted from an east-bound Diversey bus on the southwest corner of the Rockwell intersection. She stopped and looked west to her left. She saw cars stopped at the traffic lights near the expressway. Also she saw one car "just passing" in an easterly direction. When there was no traffic coming, she crossed within the marked crosswalk until she came to the yellow central strip of Diversey. She waited here for about two minutes for cars to pass moving west on Diversey toward California. During this time she looked east toward Western Avenue. Several or "many" cars passed her going west. These cars were "about three feet" from her. She then saw another car about half a block away going to the west. She described this car as "coming very fast." She added, "I noticed like zig zag on the lights and then I was hit." She could not say for sure but she believed the front of the car struck her. She said, "* * * everything happened so fast, I cannot remember anything else after that." In her discovery deposition, she had stated she could not tell if this oncoming car "swerved or not." She testified she knew when she started to cross the street she would have to stop in the middle of the street but, "I did that every day."

Defendant testified he left his work that night and went to visit a friend who worked at the Belmont Bowl. Coming from work in Skokie, defendant drove on the Kennedy Expressway to the California exit ramp. Then he drove south to Diversey. At Diversey he made a left turn and proceeded to drive east. He was then under the impression that Belmont crossed Diversey and he was attempting to locate the intersection. About 8 p.m. he approached the Rockwell intersection. His speed was 20 miles per hour. The road was wet and there was a slight rain or mist. He operated his windshield wipers at intervals. The record shows the intersection was well lighted by street lights. Defendant did not see the plaintiff at any time. Upon entering the intersection he heard a noise "right on my left hand side." He stopped his car just past the east curb of Rockwell and parked on the south side of Diversey. He left his car and walked back. He found plaintiff lying in the intersection slightly west of the center of the southern portion of Rockwell and entirely north of the yellow median line on Diversey. He was unable to speak to her because she spoke Spanish.

Defendant and three other persons waited for the police and later went to the hospital. The only damage defendant found on his automobile was a crack at the base of the rear view mirror on the left side. There were no cars in front of defendant. He did not note any westbound traffic on Diversey.

In this court plaintiff contends the trial court should have directed a verdict against defendant on the issue of liability; plaintiff should have a new trial because the jury's verdict and answer to the interrogatory were against the manifest weight of the evidence; there was no evidence of contributory negligence to justify the instructions and the special interrogatory on that issue and the trial court should have held a voir dire hearing before ruling that the answer of defendant to plaintiff's amended complaint was not a judicial admission.

I

Whether the trial court should have directed a verdict against defendant on liability and also in favor of plaintiff on contributory negligence is to be decided under the Pedrick standard. That is, the trial judge here should have directed a verdict or entered judgment n.o.v. if all of the evidence when viewed in its aspect most favorable to defendant so overwhelmingly favors plaintiff that no contrary verdict on the evidence could ever stand. (See Mizowek v. De Franco (1976), 64 Ill.2d 303, 309, 356 N.E.2d 32, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) On the other hand, the trial judge should have set aside the verdict of the jury and the answer to the special interrogatory only if the verdict and answer were contrary to the manifest weight of the evidence. Mizowek, 64 Ill.2d 303, 310.

Plaintiff answers the questions raised in these first two issues by citing the pertinent section of the Motor Vehicle Act (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-1002) which provides, "the driver of a vehicle shall yield the right-of-way, * * * to a pedestrian crossing the roadway within a crosswalk * * *." However, it has been repeatedly held that this enactment "does not absolve a pedestrian from the duty to use ordinary care for his own safety in crossing at the crosswalk." Sandquist v. Kefalopoulos (1977), 49 Ill. App.3d 456, 460, 364 N.E.2d 475, and cases there cited.

This requirement of proof of due care by a pedestrian in a crosswalk has been the law of Illinois for some time. In Zeller v. Durham (1962), 33 Ill. App.2d 273, 279, 179 N.E.2d 34, the court pointed out that in a situation involving a pedestrian in a crosswalk injured by a motorist there is an issue of fact as to whether the motorist was guilty of negligence (citing Moran v. Gatz (1945), 390 Ill. 478, 62 N.E.2d 443), and there is a corresponding issue arising from the duty of the pedestrian to conduct himself so as to be freed from contributory negligence.

In the instant case, the testimony of plaintiff leaves much to be desired. She testified she remained standing close to the center line of Diversey for two minutes. Defendant testified he did not see plaintiff standing there until he heard the noise of physical contact with her. Defendant testified he was driving in an easterly direction. Plaintiff testified she was struck by a car coming from the east, going west. The testimony of plaintiff is weakened by her own admission that the occurrence "happened so fast" that she could not remember anything else after she saw a car about half a block away going west.

An issue also appears on the time element here. Plaintiff testified she left her work at 5 o'clock and the occurrence took place about 7:30 or 8 o'clock. Defendant testified his car was ...


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