Appeal from the Circuit Court of Cook County; the Hon. Carl
McCormick, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Joseph Romero, Susan Romero, Monica G. Romero and Richard Romero, brought suit against defendant, Robert Ciskowski, for injuries arising out of a collision with an automobile allegedly driven by defendant in a negligent manner. During the jury trial defendant attempted for the first time to assert an affirmative defense of statutory immunity based on the fact that defendant was a fireman. The trial court denied that motion and also denied defendant's subsequent motion for summary judgment based upon that same statute. At the end of defendant's evidence, the trial court also directed a verdict on the issue of liability in favor of plaintiffs. The jury then entered the following verdicts for plaintiffs: for Richard Romero, $1,000; for Monica G. Romero, $1,000; for Joseph Romero, $4,000; and for Susan L. Romero, $4,000.
In this appeal, defendant contends that the trial court erred in directing a verdict as to liability in favor of plaintiffs and that the trial court committed reversible error in denying his motion for summary judgment.
At trial, Joseph Romero testified that at approximately 5:30 p.m. on October 24, 1975, he was operating his motor vehicle, which was occupied by the coplaintiffs, in an easterly direction while in the curb or southernmost lane of the two eastbound lanes. At that time, he was traveling at 40 to 45 miles per hour. According to Romero, there were yield and stop signs where Route 72 intersected with Governor's Lane. These signs governed traffic on the latter roadway. Prior to impact, his wife screamed, "A car is coming." Romero then looked to his left, saw defendant's vehicle and applied the brakes. The left side of the plaintiffs' vehicle was then struck.
On cross-examination, Joseph Romero stated that prior to impact he had his eyes focused on the road ahead, and yet he did not observe defendant's vehicle at the intersection.
At this point, defense counsel attempted to file the affirmative defense of statutory immunity. Defense counsel asserted that defendant was entitled to such statutory immunity since he was a full-time fireman traveling to the firehouse near the accident to answer a fire call at the time of the collision. (See Ill. Rev. Stat. 1983, ch. 24, par. 1-4-4.) After hearing the arguments of counsel, the trial court denied defendant leave to file this affirmative defense, since the court concluded it was not timely presented.
The investigating police officer, Ronald Sperandeo, testified that Governor's Lane is an extra-wide two-lane highway and has a 25-mile-per-hour speed limit; that there is a stop sign at its intersection with Route 72 controlling traffic on Governor's Lane; and that a yield sign was present in the median near that intersection for traffic on Governor's Lane. According to the police officer's investigation of the accident debris at this location, impact occurred in the southernmost lane of Route 72, when the left front fender and grill of plaintiffs' vehicle were damaged by the front of defendant's vehicle.
The defendant was then called by plaintiffs as an adverse witness. He admitted that immediately prior to collision he was driving on Governor's Lane, which had a 25-mile-per-hour speed limit. When he came to the stop sign, defendant looked to his right, observed no traffic approaching and then looked to his left. He then proceeded to the median, but did not stop at that location. Defendant maintained that he was not aware that there was a yield sign at the median. Defendant then proceeded through the eastbound lanes of Route 72, saw plaintiffs' oncoming vehicle, applied his brakes and attempted to stop, but the collision occurred immediately thereafter.
Susan Romero testified that she was seated in the right front passenger seat of plaintiffs' vehicle when the collision occurred. She was partly facing her husband and partly facing and talking to her children in the rear seat. According to the witness, the defendant's vehicle suddenly appeared, and she shouted that they were going to be hit. However, her husband did not have time to respond, because the collision occurred immediately thereafter. Susan Romero also stated that defendant's vehicle had no warning lights, and she did not hear defendant sound his horn before impact.
At the close of plaintiffs' case, defendant made a motion for summary judgment based upon defendant's affidavit. Defendant indicated that, when the collision took place, he was a full-time fireman and was going to the firehouse in response to a call. However, the trial court then denied this motion, stating that, at that point, there was no evidence in the record that defendant was in performance of his duties as a fireman at the time of the collision. In addition to denying defendant's motion for summary judgment, the trial court also sustained plaintiffs' motion in limine barring the defendant from offering the testimony of his fire chief to corroborate that at the time of the incident defendant was returning to the firehouse to assist in the fighting of a fire.
Defendant testified in his own behalf and stated that on the date in question he was a full-time fireman for the village of Hoffman Estates; that he was en route to the firehouse when the collision took place; that the aforementioned intersection was on flat land and was 150 feet from the fire station; and that Route 72 had a warning sign that the firehouse was at the intersection. Defendant further testified that when he looked from the median and observed plaintiffs' vehicle it was approximately 100 feet away. At that time, defendant was proceeding at 15 miles per hour but could not estimate the speed of plaintiffs' vehicle; however, several seconds later the impact occurred. Defendant maintained that, although he could not recall his speed at the time of impact, he was almost stopped when the right front portion of his vehicle was struck by the left front fender of plaintiffs' vehicle.
On cross-examination, defendant stated that he did not stop at the median.
At the close of all the evidence, plaintiffs moved for a directed verdict on liability. The court noted that the police officer stated that there was a yield sign at the median; that there was a point where defendant would look in the direction of plaintiffs' vehicle; that defendant was familiar with the intersection; and that it was defendant's duty to avoid becoming involved in a collision. The trial court then sustained plaintiffs' motion for a directed finding as to negligence.
At that point, defendant unsuccessfully reiterated his motion for a directed finding pursuant to statutory immunity. The trial court then informed the jury that it had found for plaintiffs on the issue of liability and directed the jury to determine whether or not plaintiffs were damaged ...