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Albaugh v. Cooley





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Charles J. Durham, Judge, presiding.


Plaintiff, Larry Albaugh, brought this action to recover for injuries he sustained when an automobile driven by defendant, Thomas A. Cooley, struck him as he crossed a roadway on foot. On request of defendant the trial court submitted to the jury a special interrogatory: "Do you find that the plaintiff, Larry Albaugh, immediately before and at the time of the occurrence was guilty of any negligence which proximately contributed to cause his injuries?" The jury answered the special interrogatory, finding plaintiff guilty of contributory negligence, but also returned a general verdict in favor of plaintiff for $20,000. The trial court thereupon entered judgment upon the special interrogatory in favor of defendant pursuant to section 65 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 65). We note that our recent decision in Alvis v. Ribar (1981), 85 Ill.2d 1, has no effect on the decision here because this trial commenced prior to June 8, 1981, the date on which Alvis v. Ribar became effective. See 85 Ill.2d 1, 28.

The appellate court, in three separate opinions, reversed and entered judgment on the general verdict in favor of plaintiff. (88 Ill. App.3d 320.) The first opinion concluded that the evidence so overwhelmingly favored plaintiff on the issue of contributory negligence that no contrary verdict could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510). It also concluded that section 65 is an unconstitutional violation of separation of powers (Ill. Const. 1970, art. II, § 1) because the enactment infringes upon the inherent judicial power of the court. The second opinion, in a special concurrence, agreed that no finding of contributory negligence on the part of the plaintiff could ever stand, but concluded that it was unnecessary to address the constitutionality of section 65. The third opinion, a dissent, found that the evidence was sufficient to support a finding of contributory negligence and that section 65 does not violate the separation of powers doctrine. We allowed defendant's petition for leave to appeal.

The record reflects that the accident occurred near the T-intersection of Rohlwing Road and Campbell Street in Rolling Meadows. Rohlwing Road is a two-laned road running generally north and south. The strip of Rohlwing Road near the pertinent intersection is on an S-curve. The speed limit on Rohlwing Road is 30 miles per hour. Campbell Street extends east from Rohlwing Road and runs east and west. There is a stop sign on Campbell Street for cars entering Rohlwing Road, but there are no other stop signs or stop lights at the intersection. It is undisputed that at the time of the accident the sky was dark and the weather clear and dry.

Plaintiff testified that on March 15, 1973, prior to the accident, he left his house, which was a short distance west of Rohlwing Road, to test the range of a set of walkie-talkies with his son. Plaintiff walked eastward on the south side of Campbell for 1 1/2 blocks while he talked to his son over his walkie-talkie and then crossed to the north side of Campbell. Plaintiff testified that he collapsed the walkie-talkie's antenna, which when extended was 2 1/2 to 3 feet long, and put the unit into his right, rear pocket. He said he did not talk or receive on the unit again. Plaintiff walked west toward Rohlwing Road to return home.

Plaintiff testified that when he reached the corner of Rohlwing Road and Campbell Street he waited for a few cars on Campbell Street to turn right before he attempted to cross Rohlwing. A street light on the corner, he stated, illuminated parts of Campbell Street and Rohlwing Road. Plaintiff looked to the left and saw defendant's car one-half to one block away in a curve on Rohlwing Road. Plaintiff said he did not form an opinion as to the speed of defendant's car, but he knew the speed limit on Rohlwing Road was 30 miles per hour. He also knew defendant would not have to stop at a stop sign or light before continuing north. Plaintiff saw no cars from the right.

Plaintiff further testified he proceeded to cross Rohlwing Road and reached the middle of the road. He stated that in a deposition taken about one year earlier he had said he did not remember whether he actually reached the painted center line, but he could remember now. Plaintiff said he was facing west, but looked and "saw the car was right up on top of [him]." He "lunged to try to get out of the way," but the car struck his right leg. He denied that he ever tried to turn around to get back to the curb. Plaintiff's right leg was injured, he claimed, because plaintiff had lunged with his right leg forward and the car was driven in front of his left leg.

In addition, plaintiff stated that there were white crosswalk lines across Rohlwing Road and that he was within these lines. He also said, however, a picture of the intersection he knew had been taken one week after the occurrence did not show white, painted crosswalk lines.

Steve Bialo, a former police officer, testified he arrived after the accident and found plaintiff lying on the west side of Rohlwing Road at the intersection directly in line with the crosswalk marks. He later said he did not remember whether there was a painted crosswalk across Rohlwing. He also said there is a pedestrian crosswalk "posted lining up with the sidewalk at that intersection or crossing." Bialo continued that the street light at the corner extends at an angle over Rohlwing and Campbell, but the street is not well lighted. Moreover, he testified that defendant told him that, as he swerved to avoid plaintiff, plaintiff started to run and ran into the front of his car.

Margaret Howell testified that immediately before the accident she was driving west on Campbell Street. Her 13-year-old daughter Christine was in the passenger's seat beside her. Ms. Howell stated that she first saw plaintiff walking west on the north side of Campbell Street about one-half or one block east of Rohlwing Road. She testified, "What caught my attention was that he had some type of a walkie-talkie or CB radio, a hand-type thing with a long antenna up in the air." She also stated that, at 15 to 20 feet from Rohlwing Road, plaintiff was still holding the unit with the antenna extended.

Ms. Howell further testified that at one point she was behind two or three cars that were waiting to turn at the intersection. She saw defendant's car approach the intersection "going no faster than what the other traffic seemed to be that night." After defendant's car passed Campbell Street, the car in front of Ms. Howell turned. Ms. Howell did not know whether it turned left or right.

In addition, Ms. Howell testified she again saw plaintiff on the sidewalk "just as he came up to Rohlwing Road at which point I was stopped to take my turn to go on." Plaintiff was on the sidewalk at that time. When she looked to her right later she "saw the pedestrian who was at that time being perpelled [sic]." Ms. Howell did not actually see defendant's car strike plaintiff.

Ms. Howell, furthermore, testified that there is a street light at the intersection of Campbell and Rohlwing, but it extends more over Campbell than Rohlwing. The lighting conditions at the scene of the accident, she said, were fair to poor. She also testified that there ...

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