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Misch v. Meadows Mennonite Home

OPINION FILED MAY 25, 1983.

PAUL M. MISCH, ADM'R OF THE ESTATE OF LYLE W. LEICHTENBERG, PLAINTIFF-APPELLANT,

v.

MEADOWS MENNONITE HOME ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding. PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff brought suit against the defendants pursuant to sections 1 and 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2). The cause was tried to a jury in the circuit court of McLean County and a verdict was returned in favor of the defendants and against the plaintiff, who appeals.

Defendant Beck was an employee of defendant Meadows Mennonite Home and was operating a bus owned by the Home in transporting some elderly persons back from a shopping trip in Bloomington. The bus was proceeding in an easterly direction on Illinois Route 9 between Bloomington and Colfax. Beck intended to turn left at the Cooksville-Ellsworth blacktop road but overshot the intersection. She slowed down and was turning into a farm lane east of the blacktop preparatory to turning around to return to the blacktop. During this maneuver the bus was struck in the left rear by a truck driven by plaintiff's decedent, Lyle Leichtenberg, who died as a result of the collision.

Leichtenberg's truck was hauling hot asphalt to a road construction project several miles east of the blacktop. This activity had been going on all day and he was on his final delivery when the collision occurred at about 3:15 p.m. on June 26, 1980.

On appeal plaintiff has raised a variety of issues which may be generally grouped as follows: (1) error in certain instructions to the jury; (2) error in certain evidentiary rulings; and (3) a verdict against the manifest weight of the evidence. Additional factual matters will be developed as necessary in the discussion of the issues.

Overarching the instruction problems is the fact that both the pleadings and the instructions were hybrids, partaking of both comparative negligence (Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886) and contributory negligence. They appear to us to be mute testimony to the fact that deeply ingrained notions die hard with the legal profession which is, on the whole, traditionalist.

Plaintiff's complaint was in the usual form, seeking damages under the Wrongful Death Act for the next of kin, expenses for medical, hospital, and ambulance services, and for funeral and burial expenses, and damages for the pain and suffering of the decedent from the time of the accident until his death. Defendants' answers were also unremarkable, being in the nature of a general denial on all counts. About three weeks before trial plaintiff obtained leave and filed an amendment to the complaint which expanded and amplified the specified allegations of negligence. Defendants filed answers to the amended complaint and set up as an affirmative defense the negligence of plaintiff's decedent, which they alleged alternatively was either "the sole proximate cause" or "a contributing cause" of the occurrence. They then asked that either recovery should be denied or proportionally reduced. Plaintiff filed a reply to the affirmative defense in the nature of a general denial.

This pattern, created by the pleadings, carried over into the instructions. While the jury was thoroughly instructed in comparative negligence and furnished with verdict form reflecting that doctrine, the abolished doctrine of contributory negligence crept in. We note in passing that the same affliction beset the drafters of the "A" Series of Illinois Pattern Jury Instructions (IPI), Civil (1981 Supp.). Many of their comments and notes on use refer to "contributory negligence," although as we understand Alvis, no such concept any longer exists.

Plaintiff complains specifically about defendants' burden of proof instruction and his own issues instruction. The burden of proof instruction stated:

"The plaintiff has the burden of proving each of the following propositions:

First, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Second, that the plaintiff's decedent sustained injuries and died;

Third, that the negligence of the defendants was a proximate cause of the death of the plaintiff's decedent.

In this case the defendant has asserted affirmative defenses:

a. That the plaintiff's decedent in the operation of his motor vehicle was contributorily negligent and that said negligence was the sole proximate cause of the plaintiff's decedent's death.

The defendant has the burden of proving these defenses.

If you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved and that none of the defendants' affirmative defenses have been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions the plaintiff is required to prove has not been proved, or that any one of the defendants' affirmative defenses has been proved, then your verdict should be for the defendants." IPI Civil No. A21.03 (1981 Supp.).

The issues instruction was originally submitted by the defendants but then withdrawn by them. It was resubmitted by plaintiff and stated:

"The plaintiff claims that plaintiff's decedent sustained injuries and died and that the defendants were negligent in one or more of the following respects:

a. Failed to give appropriate signal of her intention to either stop her vehicle or to turn her vehicle when the decedent's vehicle was immediately to the rear.

b. Failed to give appropriate signal of her intention to turn her vehicle not less than the last two hundred ...


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