Barth v. Reichert

• Decision Date: 07 February 1962
• Docket Number: Gen. No. 48519
• Citation: 34 Ill.App.2d 472,181 N.E.2d 609
• Parties: Lillian BARTH and Judy Saltzberg, a minor, by Al Saltzberg, her father and next friend, Plaintiffs-Appellants, v. Barbara REICHERT and John M. Reichert, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 609

181 N.E.2d 609

34 Ill.App.2d 472

Lillian BARTH and Judy Saltzberg, a minor, by Al Saltzberg, her father and next friend, Plaintiffs-Appellants, v. Barbara REICHERT and John M. Reichert, Defendants-Appellees.

Gen. No. 48519.

Appellate Court of Illinois, First District, Third Division.

Feb. 7, 1962.

As Modified on Denial of Rehearing March 22, 1962.

Brooks & Gordon, Chicago, Gilbert Gordon, Chicago, of counsel, for appellants.

Hinshaw Culbertson, Moelmann & Hoban, Chicago, Oswell G. Treadway, Chicago, of counsel, for appellees.

SCHWARTZ, Justice.

This is an appeal from a judgment on a verdict for defendant in a personal injury case. The suit grows out of an accident in which an automobile driven by Barbara Reichert struck Lillian Barth and a perambulator in which she was wheeling her granddaughter, Judy Saltzberg, at the intersection of 4th Street and Linden Avenue in Wilmette, Illinois, at about 3:30 p. m. on November 6, 1958. The principal question involved is the liability of one who drives an automobile while blinded by the sun and strikes a pedestrian at or near a crosswalk.

Defendant had been driving south on 4th Street and came to a complete stop at Linden Avenue. She proceeded to turn west on Linden Avenue, intending to park in the parking space closest to the corner. That space was vacant. As she proceeded to turn, the sun's rays blinded her. Her precise words were: '* * * the sun was like hitting me in the eyes. For a minute I couldn't see anything.' Then she saw a shadow through the sunlight, became aware that some one was in front of her, and stopped. Lillian Barth was lying in the street and the baby was in front of her in the carriage which had turned over and was on its side. She testified that she had been at the Jewel store on Linden Avenue, apparently on the sough side of the street; that she left the store, went east to 4th Street and proceeded to cross Linden Avenue. She was about three-fourths of the way across the street when she saw a car coming from the east, 'picked' up her hand and said 'Please stop,' and then the car pushed her down.

Witnesses differ as to whether plaintiffs were within the crosswalk or a short distance from it. Defendant, according to her own testimony, was seeking to turn her car into the first parking space, only a car's length from the corner. She must therefore have struck plaintiffs in or close to the crosswalk after she had driven blind over a portion or all of it. As she had just started the car, it is equally clear that she was driving so slowly she could have stopped on the instant, but although blinded by the sun, she did not do so. Defendant's driving while blinded was under the circumstances of this case negligence in law. Duffy v. Cortesi, 2 Ill.2d 511, 119 N.E.2d 241; Ball v. Sears, Roebuck & Co., 223 F.2d 695 (5th Cir.1955); Dinkins v. Jackson Brewing Co., 57 So.2d 52 (La.Ct.App.1952); Sanborn v. Stone, 149 Me. 429, 103 A.2d 101 (1954).

In Duffy v. Cortesi, supra, the pedestrians, as in the instant case, were grandmother and grandchild. The grandchild was five years old. They were walking across Central Avenue in Highland Park, Illinois. They were not at a crosswalk, but some considerable distance from it. The defendant while driving his car was blinded by the sum coming from the direction in which he was driving. He looked the other way, continued on his course and struck the pedestrians, killing the grandmother and injuring the child. The grandmother's body was found 32 feet from the crosswalk. Suit was instituted for the wrongful death of the grandmother and on behalf of the minor. The jury found for the defendant and judgment was entered on the verdict. The court reviewed the law in this state and in other jurisdictions and came to the conclusion that the defendant was guilty of negligence as a matter of law and that the jury should have found that the minor was entitled to recover. As to the grandmother the court held there was evidence of contributory negligence sufficient to require submission to the jury.

In certain cases it has been held in Illinois that the question was one for the jury. Thus, in Goodman v. Keeshin Motor Express Co., 278 Ill.App. 227, it was the plaintiff who was driving his car while blinded by the lights of a truck attempting to pull the defendant's truck out of the mud. The jury found for the plaintiff, and judgment on the verdict was sustained by the Appellate Court. The Court said that the situation presented by the two stationary vehicles, one apparently heading for the plaintiff and blinding him, constituted a trap and led the plaintiff to believe he could pull over to the right and pass safely. The court held that the jury could properly have concluded that the driver for the defendant was negligent in permitting the trucks to stand without any warning to approaching automobiles.

In Wedig v. Kroger Grocery & Baking Co., 282 Ill.App. 370, the plaintiff's intestate was injured in a collision with the defendant's truck and trailer. The charge of negligence was that the defendant had left the truck and trailer standing on a state highway without any light or other warning; that the plaintiff's lights had been interfered with by an automobile approaching him with bright lights and that thereafter he saw the defendant's truck. The court said that while some cases hold that driving while blinded is negligence per se, others hold it a question for the jury. The court held that the facts of that case brought it within the latter rule. The plaintiff had only stated that his vision was interfered with and that he did not see the defendant's truck for other reasons. The court held that whether his failure to see the truck was because he was blinded was a question for the jury.

In Paul v. Garman, 310 Ill.App. 447, 34 N.E.2d 884, a road repair worker was struck by the defendant's automobile. The jury found the defendant guilty of wilful and wanton misconduct. The defendant's plea was that he had been blinded by the lights of another car. The court said that where a motorist is blinded by the lights of another car and continues his course, it is a question for the jury whether he is guilty of negligence. It should be noted that in that case the jury found the defendant guilty of wilful and wanton misconduct, so that the question of whether the circumstances constituted negligence in...