Appeal from the Circuit Court of Cook County; the Hon. Lester
D. Foreman, Judge, presiding.
PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 11, 1983.
Defendants, city of Chicago and William Jackson, appeal from the trial court's denial of their post-trial motion alleging, amongst other things, error in jury instructions and the judgment entered upon the jury verdict awarding Helen Matelis, plaintiff, $111,661.75 in a personal injury action.
The testimony reveals that plaintiff, then 71 years old, was struck on the posterior of her left shoulder by a city of Chicago garbage truck, driven by William Jackson, a city CETA *fn1 employee and a defendant in this case. On the morning of the accident, October 18, 1977, plaintiff was returning from Northwestern Hospital where she had an eye examination relating to a cataract condition. Plaintiff exited a Chicago Transit Authority (CTA) bus at Pulaski Avenue and proceeded with the green light within the crosswalk, southward across Chicago Avenue. According to plaintiff, she was within five feet of the opposite curb and looking straight ahead when she was struck from behind. The impact knocked plaintiff to the ground. When she looked up she saw a blue city of Chicago garbage truck. Plaintiff was taken to the hospital where it was determined that she had sustained a broken humerus. *fn2 As the appeal does not involve a challenge to the sufficiency of the evidence, a detailed discussion of the damages will not be set forth.
Johnny Tucker testified on behalf of the defendants. Tucker, an assistant to William Jackson on the morning of the accident, was riding in the front passenger seat of the garbage truck. According to Tucker, the truck was facing southward on Pulaski Avenue waiting for the northbound traffic to clear in order to make a left hand turn onto Chicago Avenue. Tucker saw plaintiff crossing the street and observed she had reached a point about six to eight feet from the south curb when the truck began its turn. The truck was in first gear and moving about three to four miles per hour when plaintiff turned around ("about face") and came back in the direction of the truck. Tucker looked away momentarily and the next thing he heard was the impact of the accident. Tucker stated that he could see from his position in the truck that plaintiff was elderly.
Plaintiff made a motion to bar Jackson from testifying for failure to respond to the pleadings or the notices for discovery in this case. The record does not indicate that a ruling was ever made on this motion. During the trial, Jackson was not called as a witness by either party. However, during closing argument, plaintiff's counsel told the jury that they would be instructed that Jackson's failure to testify allowed them to infer that his testimony would not have been favorable to defendants.
The instruction given by the trial court included plaintiff's instruction number 20, based upon Illinois Pattern Jury Instruction, Civil, No. 60.01 (2d ed. 1971) (hereinafter cited as IPI Civil), and the Illinois Vehicle Code, section 11-1003.1 (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-1003.1) which read as follows:
"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any obviously confused, incapacitated person.
If you decide that the parties violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the parties were negligent before and at the time of the occurrence."
In addition, plaintiff's instruction number 22, also challenged in this appeal, was given (IPI Civil No. 5.01) which read:
"If a party to this case has failed to produce a witness within their power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the ...