Berg v. Collier, Gen. No. 64-97
| Court | Illinois Appellate Court |
| Writing for the Court | EBERSPACHER |
| Citation | 208 N.E.2d 353,60 Ill.App.2d 145 |
| Decision Date | 04 June 1965 |
| Docket Number | Gen. No. 64-97 |
| Parties | Otto BERG, Appellant, v. Steve COLLIER, Appellee. |
Page 353
v.
Steve COLLIER, Appellee.
[60 Ill.App.2d 147]
Page 354
Ryan & Heller, Mattoon, Willis Ryan and Harlan Heller, Mattoon, of counsel, for appellant.Frank H. Schniederjon, Effingham, for appellee.
EBERSPACHER, Presiding Justice.
This is an appeal from a judgment entered on a verdict of a jury in favor of defendant in a negligence action for personal injuries.
Plaintiff had sought to recover for his personal injuries suffered as a result of his being thrown off a tractor which he was operating on a state highway, in a Northwesterly direction, when the tractor was struck from the rear by the motor vehicle driven by defendant who was traveling in the same direction. The original complaint contained no allegation explicitly charging excessive speed nor violation of any statutory provision concerning speed.
Plaintiff's uncontradicted testimony was that he was operating the tractor at a speed of 3 to 5 miles per hour when the tractor was struck; Defendant's uncontradicted testimony was that he was traveling 55 to 60 miles per hour when at the top of a hill to Plaintiff's right and first saw Plaintiff's tractor in a driveway 1,000 feet to a quarter of a mile ahead of him. Plaintiff contends that when he pulled on to the highway Defendant was not in sight, that he could see approximately a quarter of a mile to his right to the top of the hill. Defendant contends that he was 100 to 150 feet from plaintiff when plaintiff pulled on to the highway ahead of him and had traveled about [60 Ill.App.2d 148] 75 feet before the collision occurred, and that he had applied his brakes 75 to 100 feet before colliding with the tractor. Other evidence placed the point of the collision 100 to 120 feet from the point at which Plaintiff had pulled on to the highway. The day was clear and the pavement was dry; there were no skid marks on the pavement. Both the view of Plaintiff to the top of the hill and Defendant's view from the top of the hill, were unobstructed, even though the road made a gradual curve from the top of the hill to the point of the collision.
Page 355
During the conference on jury instructions and after the 'Issue' instruction, (I.P.I. 20.01) and the 'Burden of Proof' instruction (I.P.I. 21.02) neither of which contained any explicit reference to speed or to any portion of the statutes concerning speed, were marked given, Plaintiff tendered his instruction number 11. The instruction was in the form prescribed by I.P.I. 60.01, and included the following portion of Ch. 95 1/2, Sec. 146, Ill.Rev.Stat.1963:
'No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; or (2) is greater than the applicable maximum speed limit established by this section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists [60 Ill.App.2d 149] with respect to pedestrians or other traffic or by reason of weather or highway conditions; and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.'
Upon tender of Plaintiff's instruction number 11, Defendant objected to the instruction on the grounds that, there was no evidence of excessive speed or failure to use proper speed. Plaintiff thereupon was granted leave to amend his complaint by adding a subparagraph charging that defendant 'negligently and carelessly failed and omitted to reduce the speed of his motor vehicle when necessary to avoid colliding with other vehicles on the highway contrary to the provisions of Section 146, Chapter 95 1/2, Illinois Revised Statutes, 1963'. Defendant moved to strike the amendment on the theory that the evidence did not support an allegation of speeding or the necessity of decreasing speed to avoid colliding with another vehicle on the road. The court granted Defendant's motion and struck the amendment, and finally refused the instruction.
In view of the evidence of the speed of the vehicles, and evidence of the distances traveled by both vehicles immediately before the collision, in an area where the view was unobstructed, we fail to see how the speed of plaintiff's vehicle could be immaterial, or how plaintiff could be said to have a fair trial if he were not allowed to plead breach of the applicable Statute referred to in his amendment. The amendment was proper, Sec. 46, par. (3), Civil Practice Act, and the court erred in striking it. The fact that the amendment was offered after Plaintiff's issue and burden of proof instructions had been tendered but...
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Trowbridge v. Chicago & I. M. Ry. Co., Gen. No. 69--133
...23; Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120; Hitt v. Langel, 93 Ill.App.2d 386, 236 N.E.2d 118 and Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353. The foregoing cases cited by defendant illustrate and discuss the general Page 622 rule but are of little assistance by way of......
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Foerster v. Illinois Bell Tel. Co., No. 58781
...Authority, 7 Ill.App.2d 21, 129 N.E.2d 23, 1955; Wrighthouse v. Brown, 52 Ill.App.2d 191, 201 N.E.2d 752, 1964; Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353, 1965.) The record in the case at bar lacks the evidence that would have justified the defendant's instructions. As stated in St......
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Ball v. Continental Southern Lines, Inc., No. 75--519
...to the jury with substantial accuracy (Sims v. Chicago Transit Authority, 7 Ill.App.2d 21, 29--30, 129 N.E.2d 23; Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353). There is also no impropriety in instructing in the language of an appropriate statute (Deming v. City of Chicago, 321 Ill. 3......
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Davis v. Marathon Oil Co., No. 47707
...to them. See also Hitt v. Langel (5th Dist. 1968), 93 Ill.App.2d 386, 392--94, 236 N.E.2d 118; Berg v. Collier (5th Dist. 1965), 60 Ill.App.2d 145, 149--51, 208 N.E.2d We consider now whether the failure to give one or both of the tendered instructions was sufficiently harmful to require a ......
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Trowbridge v. Chicago & I. M. Ry. Co., Gen. No. 69--133
...23; Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120; Hitt v. Langel, 93 Ill.App.2d 386, 236 N.E.2d 118 and Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353. The foregoing cases cited by defendant illustrate and discuss the general Page 622 rule but are of little assistance by way of......
-
Foerster v. Illinois Bell Tel. Co., No. 58781
...Authority, 7 Ill.App.2d 21, 129 N.E.2d 23, 1955; Wrighthouse v. Brown, 52 Ill.App.2d 191, 201 N.E.2d 752, 1964; Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353, 1965.) The record in the case at bar lacks the evidence that would have justified the defendant's instructions. As stated in St......
-
Ball v. Continental Southern Lines, Inc., No. 75--519
...to the jury with substantial accuracy (Sims v. Chicago Transit Authority, 7 Ill.App.2d 21, 29--30, 129 N.E.2d 23; Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353). There is also no impropriety in instructing in the language of an appropriate statute (Deming v. City of Chicago, 321 Ill. 3......
-
Davis v. Marathon Oil Co., No. 47707
...to them. See also Hitt v. Langel (5th Dist. 1968), 93 Ill.App.2d 386, 392--94, 236 N.E.2d 118; Berg v. Collier (5th Dist. 1965), 60 Ill.App.2d 145, 149--51, 208 N.E.2d We consider now whether the failure to give one or both of the tendered instructions was sufficiently harmful to require a ......