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Blacconeri v. Aguayo

OPINION FILED MAY 2, 1985.

EVELYN BLACCONERI, PLAINTIFF-APPELLANT,

v.

DAVID AGUAYO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff brought an action for damages against defendants, automobile driver and automobile owner, arising out of injuries she sustained when struck while crossing the street. The trial court granted defendant auto owner's motion for a directed verdict in his favor at the close of all the evidence.

Following instructions and deliberation, the jury found defendant driver liable to plaintiff and awarded her $15,000 in economic damages. The jury further found that plaintiff was contributorily negligent and reduced the damage award by 99% to $150.

On appeal, plaintiff claims that the trial court erred (1) by admitting evidence of safer alternative routes; (2) by giving repetitive IPI instructions to the jury; and (3) by directing a verdict in favor of defendant auto owner.

We affirm the decision of the trial court.

BACKGROUND

In the midst of rush hour, on a dark and drizzly evening in October 1981, plaintiff, Evelyn Blacconeri, was dropped off by a co-worker on the southwest corner of Harlem Avenue and 13th Street. Harlem Avenue is a major four-lane thoroughfare, with two northbound and two southbound lanes divided by a double yellow line. The speed limit on Harlem Avenue is 35 miles per hour. The intersection of Harlem and 13th Street is uncontrolled; there is neither a painted crosswalk nor a traffic signal. The closest controlled intersection to Harlem and 13th Street is Roosevelt Road, one block north. At rush hour, Harlem Avenue is typically well-trafficked in both directions.

After plaintiff was dropped off at the southwest corner of the 13th Street intersection, she crossed from the southwest corner to the northwest side of the street. Plaintiff then attempted to cross Harlem Avenue, walking in a northeasterly direction.

Delores Grech testified at trial that she was walking west on the south side of 13th Street approaching the Harlem Avenue intersection when she saw a woman (plaintiff) standing on the west side of Harlem, approximately 60 feet north of the 13th Street intersection. Grech next saw the woman standing on the center divider in the middle of Harlem Avenue, apparently having successfully negotiated crossing the southbound lanes. Grech then saw plaintiff hesitate for a few seconds and start across the northbound lanes, making her way east in a diagonal route across Harlem.

Grech testified further that seconds after she saw plaintiff enter the northbound lanes, she saw a car, driven by defendant, Michael Aguayo, approaching in the northbound curb lane on Harlem Avenue, just north of the 13th Street intersection. Grech noticed that another car, approaching from the north in the center lane next to defendant, had slowed down. Immediately thereafter, Grech saw plaintiff struck by defendant's car, which stopped upon impact, approximately 60 feet north of the 13th Street intersection.

Grech's testimony regarding the point of impact was disputed by plaintiff, who claims she was struck "just a couple of feet" north of the 13th Street corner. Five witnesses testified as to where plaintiff and defendant's car were located immediately subsequent to the accident. Among these post-occurrence witnesses was investigating Officer Joseph Petersen, who testified that plaintiff was 67 feet north of the 13th Street curb when she was struck. Also among these witnesses was paramedic James Keating, who estimated that plaintiff was 75 feet north of the 13th Street curb when he found her at the accident scene.

Grech's testimony was corroborated by the defendant driver, who stated that the car he was driving at the time of the accident belonged to his brother, defendant David Aguayo. Michael stated that at the time of the occurrence, he was on his way to an auto supply store to pick up some parts with which to service his brother's car. David Aguayo testified that he had not requested Michael to work on the car and had no knowledge of Michael's intention to do so.

Michael Aguayo testified that he was proceeding down Harlem Avenue at a rate of 33 to 35 miles per hour and was about two car lengths from plaintiff when he saw her in the center northbound lane. He stated that there was a car next to his, in the center northbound lane, and that this car had slowed down just when Michael had accelerated to cross the 13th Street intersection. Plaintiff entered defendant's lane, running diagonally in a northeasterly direction towards the curb. Michael testified that he hit his brakes and slid into the east curb, thereby slowing his car to a speed of 5 or 10 miles per hour prior to impact. Defendant's car came to a complete halt upon coming into contact with plaintiff.

Following the accident, plaintiff was taken to a hospital, where she was treated for fractures of the pelvic bone and lower back and a scalp laceration. She remained in intensive care for three days and was then seen on an out-patient basis for several weeks thereafter. Ten weeks after the accident, one of plaintiff's treating physicians, Dr. Dilip Shah, informed her that she should be ...


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