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12/16/94 CHARLOTTE J. SLAVIN v. MICHAEL B. SALTZMAN

December 16, 1994

CHARLOTTE J. SLAVIN, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
MICHAEL B. SALTZMAN, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 91-L-1962. Honorable Robert K. Kilander, Judge, Presiding.

The Honorable Justice Colwell delivered the opinion of the court: Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, Charlotte Slavin, brought this action for injuries sustained when she was struck by a vehicle driven by defendant, Michael Saltzman, while she was crossing the street on foot. The jury returned a general verdict in favor of plaintiff and against defendant but left blank those portions of the form pertaining to any negligence attributable to plaintiff. The jury also returned a signed special interrogatory stating that plaintiff's contributory negligence was the sole proximate cause of her injuries. The trial court conferred with the jury, completed the general verdict form, entered judgment on the general verdict, and set aside the special interrogatory. Defendant appeals, alleging that the trial court committed several evidentiary errors. Defendant also argues that the trial court abused its discretion in completing the general verdict form and entering judgment thereon. Plaintiff filed a cross-appeal requesting a new trial on the issue of damages where the jury failed to issue an award for disability and disfigurement. We reverse and remand this cause for a new trial.

The record indicates that at about 6:20 a.m. on October 19, 1989, plaintiff parked her car at her private parking space near the trainstation in Naperville. Plaintiff worked in downtown Chicago and had taken the train to her job for the last 15 years. The accident occurred at the intersection of Washington Street and Fifth Avenue. Washington is a four-lane road running north-south in Naperville. Fifth Avenue is an east-west road which, coming from the west, "T's" into Washington, then jogs up north over 100 feet and continues east from Washington. The northern leg of Fifth Avenue had a traffic signal at the time of the accident but the southern leg did not. There is a pedestrian overpass to the south of the southern leg of Fifth Avenue which extends over Washington near the train station.

Plaintiff parked her car west of Washington just north of the southern leg of Fifth Avenue. She proceeded along the southern leg of Fifth Avenue walking east toward Washington. Plaintiff stopped at the southwest corner of Washington and the southern leg of Fifth Avenue and waited to cross Washington Street. The record indicates it was still relatively dark out and a light rain was falling. Plaintiff proceeded east across Washington.

Defendant was preceding northbound in the right-hand lane on Washington to his parking space near the train station. As defendant drove under the pedestrian overpass he moved into the inner northbound lane to pass a yellow pickup truck that was stopped in the same right-hand lane about 100 feet south of the southern intersection of Fifth Avenue. Once he cleared the truck, defendant changed back to the curb lane. When his vehicle was entirely in the right lane, defendant saw plaintiff in his lane about 25 to 30 feet ahead of him. Defendant slammed on his brakes but was unable to avoid coming into contact with plaintiff. The record indicates that plaintiff was hit by defendant either in the northbound curb lane or the northbound inside lane. Plaintiff suffered a laceration on her head requiring stitches, a broken right arm, broken pelvic bone, and circulation problems in her right leg.

Plaintiff filed suit against defendant on September 26, 1991. Plaintiff alleged that she was crossing Washington in the statutory crosswalk at Fifth Avenue and that defendant negligently cause her injury by failing to yield the right-of-way to a pedestrian in a crosswalk, carelessly switching lanes, failing to reduce his speed, failing to keep a proper lookout, and failing to operate a motor vehicle in a controlled manner.

Defendant denied these allegations and filed affirmative defenses asserting plaintiff's own contributory negligence in that she (1) failed to keep a proper lookout, (2) failed to yield the right-of-way to a vehicle, (3) failed to yield the right-of-way to a vehicle where an overhead pedestrian crossing had been provided, (4) crossed Washington at apoint not designated a marked crosswalk, (5) voluntarily exposed herself to danger by crossing in traffic at a location not marked for pedestrian travel, and (6) crossed where other safe alternative routes were provided.

At trial, plaintiff testified that she stopped and looked for traffic before crossing Washington. She looked to her left and saw that the traffic light for Washington at the northern leg of Fifth Avenue was red. She did not see any oncoming cars to her right so she proceeded across Washington. Plaintiff testified that she never saw defendant's vehicle and does not remember anything about the accident. Plaintiff believed she had cleared at least the two southbound lanes before she was hit by defendant's vehicle.

Defendant testified that he was traveling northbound on Washington at about 25 miles per hour. The speed limit on Washington is 30 miles per hour. After noticing the yellow pickup truck in his lane, defendant checked for traffic, then moved into the inner lane while continuing to look ahead. He did not notice any pedestrians crossing Washington. Defendant looked into his right side mirror to make sure he had cleared the pickup truck in order to change back into the curb lane. He was still driving about 25 miles per hour. Defendant said he then saw plaintiff in his lane, slammed on his brakes, skidded, and hit her less than a second later.

James Bedell, a Naperville police officer who investigated the scene, testified that he measured the skid marks left by defendant's vehicle to determine the speed at the time defendant applied his brakes. Bedell calculated that the maximum possible speed of defendant's vehicle could have been 30.7 miles per hour and the minimum would have been 25 miles per hour.

At the end of testimony and arguments, the jury began deliberations at about 4:20 p.m. The parties had agreed to waive the polling of the jury. The jury returned at about 9:30 p.m. Their general verdict form, signed by all jurors, found in favor of plaintiff and awarded $56,000. However, the jury left blank the following two questions:

"Second: Assuming that 100% represents the total combined negligence of all persons whose negligence proximately contributed to the Plaintiff Charlotte Slavin's injuries, including Plaintiff Charlotte Slavin's and Defendant Michael Saltzman's we find that the percentage of such negligence attributable solely to Plaintiff is percent.

Third: After reducing the total damages sustained by Plaintiff by the percentage of such negligence attributable solely to Plaintiff, we assess Plaintiff's recoverable damages in the sum of $ ."

The jury also answered in the affirmative as to the following special interrogatory submitted on a separate sheet of paper:

"Was there contributory negligence on the part of Charlotte Slavin before and at the time of the occurrence which was the sole proximate cause of her injuries? Answer this question by filling in the following blank with 'yes' or 'no': yes."

The trial court entered judgment on the general verdict form in an order filed June 17, 1993. The order stated in pertinent part:

"The jury having returned VERDICT FORM B, assessing damages against the Defendant and in favor of the Plaintiff in the amount of $56,000.00, and further finding "0"% negligence attributable solely to the Plaintiff, said number being written in by the Court after asking the jury what was intended by leaving that space blank, and the foreman indicating "0"% was ...


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