69 N.E.2d 293 (Ill. 1946), 29070, Schneiderman v. Interstate Transit Lines

Docket Nº:29070.
Citation:69 N.E.2d 293, 394 Ill. 569
Case Date:September 18, 1946
Court:Supreme Court of Illinois

Page 293

69 N.E.2d 293 (Ill. 1946)

394 Ill. 569




No. 29070.

Supreme Court of Illinois

September 18, 1946

Rehearing Denied Nov. 14, 1946.

Page 294

[394 Ill. 570] Appeal from Superior Court, Cook County; John F. Bolton, judge.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellant.

[394 Ill. 571] Drennan J. Slater, of Chicago, Ill., and Thomas F. Hamer, of Omaha, Neb., for appellee.

MURPHY, Justice.

Jack Schneiderman started this suit in the superior court of Cook county against Interstate Transit Lines, Inc., to recover damages for personal injuries sustained when the automobile he was driving collided with one of defendant's busses. A jury trial resulted in a verdict for plaintiff for $100,000. In response to a special interrogatory submitted at defendant's request, the jury found that the bus had been operated in a wilful and wanton manner. The court overruled defendant's motion for judgment notwithstanding the verdict, for

Page 295

a new tril, nd its motion to require remittitur nd to set side the nswer to the specil interrogtory. Judgment ws entered on the verdict. On Appel the Appellte Court reversed the judgment without remnding the cuse. We grnted plintiff's petition for leve to ppel.

The accident occurred at 5:20 on the morning of November 26, 1941, at the intersection of Oak Park avenue and Madison street in the village of Oak Park. The avenue extends north and south and Madison street east and west. Plaintiff drove his automobile south on Oak Park avenue toward and into the intersection of the two streets. Defendant's bus approached the intersection from the west. The collision occurred near the center of the intersection. Traffic at the intersection was regulated by stop-and-go lights located on each corner of the intersection.

Plaintiff's complaint consisted of two counts, the first containing six charges of negligence. The first charge was general negligence in the operation of the bus, and the second that the bus was being driven at a speed greater than was reasonable and proper, having regard for the traffic and use of the way. The third pleaded that there [394 Ill. 572] was failure on the part of defendant to keep a reasonably careful lookout for traffic approaching the intersection from the north on Oak Park avenue. The other three charges of negligence were founded on alleged violations of duties arising out of the provisions of certain sections of the Uniform Act Regulating Traffic on Highways. Two of them were based on paragraph (a) of section 32 of the act. Ill.Rev.Stat.1945, chap. 95 1/2, par. 129. The first paragraph of section 32 provides that whenever traffic is controlled by traffic control signals exhibiting the words 'go,' 'caution' or 'stop,' the colors shall be green, yellow and red. Paragraph (a) provides that green shall mean that vehicular traffic facing the signal may proceed straight through or turn right or left, unless a sign prohibits such turn. It further provides that such vehicular traffic shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited. The paragraph in reference to the color yellow directs that the color yellow shall mean caution when shown following green or go, and that 'Vehicular traffic facing the signal shall stop before entering the nearest cross walk at the intersection, but if such stop cannot be made in safety, a vehicle may be driven cautiously through the intersection.' One of the specific charges was that defendant's driver failed to yield the right of way to plaintiff who had started to cross the intersection 'while the color green alone was shown on the traffic control signals regulating southbound traffic, and who was lawfully within the intersection when the color green alone was thereafter exhibited on the signals regulating east-bound traffic.' The second allegation of negligence was that defendant's agent 'failed to yield the right of way to the plaintiff, who was unable to stop in safety and was proceeding cautiously through the intersection while the color yellow following green was shown on the traffic control signal regulating southbound traffic, and who was lawfully within the intersection[394 Ill. 573] when the color green alone was thereafter exhibited on the signals regulating eastbound traffic.' The sixth charge of negligence was failure to give warning by horn as required by paragraph (a) of section 115 of the Uniform Traffic Act. Ill.Rev.Stat.1945, chap. 95 1/2, par. 212. The second count differed from the first only in that it charged the acts were committed in a wilful and wanton manner. Defendant's answer denied all charges of negligence and averred that plaintiff wilfully and wantonly drove his automobile against the red light signals into the intersection and that his own wilful act was the cause of the collision.

Defendant's motion for a new trial contained twenty assignments, including questions on weight of evidence, rulings on admission and rejection of evidence and the giving and refusing of instructions. It does not appear how many of such assignments were urged in the Appellate Court. It is stated in the court's opinion that (60 N.E.2d 908, 910): 'We find no material error in the rulings on evidence or instructions.' It was also stated that the verdict

Page 296

should not be considered as so excessive as to warrant the setting of it aside on that ground.

Plaintiff's injuries affected his power to speak coherently and intelligently at all times and he could not make answer to any but simple questions. The Appellate Court held that plaintiff's mental condition was such as to render him incompetent to testify and that, therefore, none of his evidence should be considered. On the remainder of the evidence it was held that no cause of action was proved and that defendant's motion for a directed verdict, made at the close of the evidence, or its motion for judgment non obstante veredicto, should have been allowed. The questions presented here are as to plaintiff's competency to testify and whether the evidence was such as to require the allowance of defendant's motion for judgment non obstante veredicto.

[394 Ill. 574] The facts pertinent to the inquiry on plaintiff's competency are as follows: Plaintiff received chest and head injuries and two medical experts were called as witnesses to prove the nature and extent of such injuries. After the doctors testified, plaintiff was called as a witness by his counsel and in response to the questions propounded he gave a few, short, simple answers. He gave his name, residence, age, the day of the month and year on which the accident occurred. He was unable to state the month, but he fixed the location of the accident at the particular street intersection. He stated that there were traffic lights at the intersection, and the following questions and answers concluded his direct examination:

'Q. What street were you driving in when the accident happened? A. Oak Park and Madison street.

'Q. Were there any traffic lights at Oak Park and Madison street? A. Yes.

'Q. What direction were you going? A. South.

'Q. Now what was the color of the light as you approached and reached the intersection? A. Green.

'Q. What happened as you were going over? Tell the jury what happened? A. Green an amber, amber and bus struck.

'Q. What happened as you were going over the crossing? A. I get hit.

'Q. You got hit? A. Yes.

'Q. By what? A. A bus.

'q. What do you next remember after that? A. I don't remember.'

At no time during the trial did defendant object to plaintiff's competency. It is for the court to decide upon the competency of the witness and for the jury to determine what credit shall be given to his testimony under the various tests recognized by the law. People v. Enright, 256 Ill. 221, 99 N.E. 936, Ann.Cas.1913E, 318; Kelly v. People, 29 Ill. 287. Except for the possible future course that this case may take, the question [394 Ill. 575] of the competency of plaintiff might well be disposed of on the ground that the question was not raised by defendant in the trial court.

The cross-examination covers twenty pages of the record. It will be impossible to detail all the answers which reflect plaintiff's mental condition. A summary of it is that his answers to the questions that were first asked on cross-examination fixed the time when he left his home on the morning of the accident, that he went some place to eat but could not tell where, that he drove on to Oak Park avenue at Washington boulevard. Plaintiff stated that this intersection was one block north of the intersection where the collision occurred and that answer was correct. His testimony shows that there were traffic control lights at the Washington boulevard intersection, that he drove onto Oak Park avenue on the flash of the green light, that he turned south on the avenue, that he was driving 20 or 25 miles per hour. In reference to seeing the light at Madison street intersection as covered by his direct examination, it is as follows:

'Q. Now, you saw an amber light, did you? A. Yes.

'Q. And where did you see the amber light? A. Green.

'Q. No. I say, where were you when you saw the amber light? A. About half a block.

'Q. You were half a block north of the corner when you saw the amber light, were you? A. Yes.

Page 297

'Q. Now, was there any other light on besides the amber light when you saw it? Wasn't there a green and amber light on together when you saw it? A. Amber.

'Q. But was there more than one color light...

To continue reading