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Zitlaw v. Woszenzynski





APPEAL from the Circuit Court of Cook County; the Hon. CHARLES DURHAM, Judge, presiding. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1981.

In this action for personal injuries resulting from an automobile collision on March 8, 1977, brought by Marianne Zitlaw (plaintiff) against Joseph Woszenzynski (defendant), a jury returned a verdict in favor of defendant and by its affirmative answer to a special interrogatory found plaintiff guilty of contributory negligence. Plaintiff appeals.

The briefs filed in this court in behalf of plaintiff are pro se. However, with permission of the court, plaintiff's trial attorney presented oral argument for plaintiff.

The unusual length of the record before us arises from the fact that the instant case was consolidated and tried together with another case brought by plaintiff against another person named Giulio Candreva for personal injuries resulting from an automobile collision on January 6, 1973. The former incident has no bearing upon the issue of liability in the case at bar. The former action was dismissed by agreement of the parties.

The accident before us occurred during the morning of March 8, 1977. The evidence shows plaintiff drove her automobile to a store on the east side of Burnham Avenue near 159th Street in Calumet City. The store building is set back to the east of a city sidewalk. Proceeding east from the east side of the street it is necessary to drive over a low curb, which plaintiff described as "hardly any curb at all." Continuing to the east a motorist passes a city sidewalk and then enters a parking area about two car lengths in width. Directly to the east of this parking area there is a sidewalk in front of the store in question.

Plaintiff drove south on Burnham then made a left turn to the east onto the parking lot and parked her car facing east directly in front of the store door. There were several other cars parked in the same manner. Plaintiff entered the store. The defendant then was also driving south on Burnham. He also made a left turn onto the parking area and parked facing east somewhat south of plaintiff's car. Up to this point the testimony of the parties coincides. After this point there is conflict.

Plaintiff testified she left the store in due course, entered her car, looked to the left and to the right and in her rearview mirror. She then backed up in a westerly direction to the beginning of the sidewalk which forms the east boundary of Burnham. She testified she had turned her car with the rear end facing south and the front facing north in order to proceed back north on Burnham. Plaintiff stopped her car in this posture for 10 or 15 minutes as there was a "convoy of school buses" going north. She then reduced that time estimate to 5 minutes. She stated about 20 buses passed before the accident.

Plaintiff leaned out of the driver's window and was leaning against the steering wheel. Plaintiff heard, and it felt like, an "explosion." She turned around and saw the back end of defendant's car piggybacked upon the right side of her car. Plaintiff testified her "body was on fire" and she was almost numb. She felt burning pain in her neck and she was bleeding.

Plaintiff had previously testified in her deposition that prior to the collision she drove her car forward into the center part of the parking area. However, she testified on cross-examination that she did not drive her car forward after she reached the sidewalk. Plaintiff also testified a police officer came to the scene and asked her if she was hurt. She said she did not know. The police officer opened the door and helped her out. She fell against the police officer because her leg bowed. She also testified on cross-examination she could not remember if she was bleeding or not.

Plaintiff also testified that, as her car was standing still, she saw a young neighbor of hers named Sherry Zitt, then approximately 13 years old, approaching on foot. This young lady testified defendant's automobile backed into plaintiff's car. However, in a pretrial statement she said plaintiff's car was facing the street and defendant's car hit plaintiff's vehicle on the left or driver's side.

Defendant testified plaintiff left the store first. Defendant intended to leave the parking area with the back of his car turned north as he intended to drive south on Burnham. Defendant looked to the right and then to the left. He did not look in the rearview mirror. He did not remember if he looked in the sideview mirror. He did not see plaintiff's car at any time before contact. As his car turned he was driving about one mile per hour. The left rear of his car came in contact with plaintiff's car. At that time he had moved about 6 feet. Defendant heard, "A minor sound." Both cars stopped immediately. Defendant saw a dented fender on the right side of plaintiff's car. Defendant asked plaintiff is she was all right, and she said, "Yes."

A police officer of Calumet City was acquainted with the plaintiff. When he arrived at the scene he found the rear bumper of defendant's car was up against the right rear side of plaintiff's car. Defendant's car was not piggybacked on plaintiff's car. When the officer arrived plaintiff was standing outside of her car. The officer did not assist her to alight. Plaintiff did not complain of injury. No injury to her was apparent and the officer's report has no reference to injury. Her apparent physical condition was normal.

The officer asked the defendant how the collision occurred. Defendant stated that as he was backing away from his parking place another vehicle quickly pulled in behind him. Plaintiff told the officer she was backing out of a parking space and waiting ...

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