Blitz v. Checker Taxi Co., Inc.

• Decision Date: 31 October 1972
• Docket Number: No. 55232,55232
• Citation: 8 Ill.App.3d 361,290 N.E.2d 291
• Parties: Pauline BLITZ, Plaintiff-Appellee, v. CHECKER TAXI COMPANY, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 291

290 N.E.2d 291

8 Ill.App.3d 361

Pauline BLITZ, Plaintiff-Appellee, v. CHECKER TAXI COMPANY, INC., Defendant-Appellant.

No. 55232.

Appellate Court of Illinois, First District, Second Division.

Oct. 31, 1972.

George Kaye, Chicago, for defendant-appellant; Jesmer & Harris, Chicago, of counsel

John J. Nelligan Baskin, Server, Miner & Berke, Chicago, for plaintiff-appellee; Joseph B. Lederleitner, Chicago, of counsel.

STAMOS, Presiding Justice.

This appeal arises from an action for personal injuries incurred by plaintiff as a result of falling from the seat of defendant's taxi-cab. After a bench trial the court found in favor of plaintiff on the issue of liability and assessed damages at $22,000. Defendant's alternative post-trial motions for judgment notwithstanding the finding and for a new trial were denied, and this appeal followed.

Defendant's sole contention on appeal is that plaintiff failed as a matter of law to satisfy her burden of proving freedom from contributory negligence. Specifically, it is contended that plaintiff's failure to utilize an available seat belt constituted contributory negligence as a matter of law. This contention requires a brief review of the evidence pertinent to the issue of contributory negligence.

Plaintiff, Pauline Blitz, testified on her own behalf as follows: On July 18, 1966 plaintiff was 77 years old. At 4:50 P.M. on that date, after shopping in the Loop area of Chicago, she hailed a cab near Michigan Avenue and Washington. A Checker cab stopped three feet from the curb. Plaintiff opened the rear door, entered the cab and gave her destination as Michael Reese Hospital, where her husband was a patient. As she entered the cab, plaintiff saw neither seat belts nor signs referring to the presence of seat belts. The driver made no mention of the presence of seat belts. As the cab neared the hospital, it suddenly made a sharp turn and a quick stop. As a result, plaintiff was thrown to the floor and sustained a fractured hip. The driver continued on to the hospital and secured medical attention for plaintiff.

Hershel Williams, the driver of the cab, testified as follows: In July, 1966 he accepted plaintiff as a passenger in his Checker cab. He picked her up at Michigan Avenue, just south of Washington. After pulling up to the curb, he emerged from the cab and assisted plaintiff in entering the rear door. Plaintiff sat on the front edge of the seat. The driver requested that plaintiff use the available seat belt and even offered to assist in fastening the belt. Plaintiff declined the offer and stated that she didn't need the seat belt. There was a sign on the back of the front seat, facing the back seat, which requested passengers to fasten their seat belts. In the course of the trip to Michael Reese Hospital the driver was required to make a number of turns and stops. After making one turn at a prudent speed, he heard plaintiff scream and saw her on the floor in obvious pain. He proceeded quickly to the emergency entrance for Michael Reese Hospital.

During the driver's testimony defendant's Exhibit #10 was admitted into evidence. It was a replica of the sign fastened to the back of the front seat of the cab, and it read as follows:

'PLEASE FASTEN SEAT BELTS

They have been installed for your safety and protection'

Also admitted into evidence were defendant's Exhibits #1 through #9, photographs of the interior of the subject cab which portrayed the presence of seat belts in the rear seat. The only other pertinent testimony was that of plaintiff's physician, who documented plaintiff's alleged injuries, but

also impeached plaintiff's assertions of prior excellent health, and that of defendant's private investigator, who impeached plaintiff's description of the route taken by the cab.

OPINION

Defendant's contention on appeal requires that we pass upon the merits of the so-called 'seat belt defense,' a concept which has received widely varying responses in treatises and in the courts of other states. See Annot. 15 A.L.R.3d 1428 (1967). The cases and commentators have suggested four possible approaches to that defense: (1) That a knowing failure to wear available seat belts constitutes contributory negligence as a matter of law; 2) That whether a knowing failure to wear available seat belts constitutes contributory negligence is a question of fact to be determined by the trier of fact under the facts and circumstances of the particular case; 3) That, with very limited exceptions, a knowing failure to wear available seat belts cannot constitute contributory negligence, but may be considered by the trier of fact on the issue of mitigation of damages; 4) That, with very limited exceptions, a knowing failure to wear available seat belts cannot constitute contributory negligence nor serve as a basis for mitigation of damages.

A number of recent Illinois cases have commented on the 'seat belt defense.' In Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329, the Second District Appellate Court held that the trial court had properly admitted evidence of plaintiff's failure to install seat belts in his car. Its position was stated as follows: (91 Ill.App.2d at 5, 234 N.E.2d at 331:

'The use, or non-use of seat belts, and expert testimony, if any, in relation thereto, is a circumstance which the trier of facts may consider, together with all other facts in evidence, in arriving at its conclusion as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. However, this element should be limited to the damage issue of the case and should not be considered by the trier of facts in determining the liability issue. Whether a person has or has not availed himself of the use of seat belts would have no relevancy in determining the cause of an accident.

It is to be noted that we do not consider the weight to be given such evidence, but merely that it is admissible on the question of the plaintiff's due care to avoid injury. The jury may give great or small weight to it, but in our judgment they are entitled to consider the matter. * * *'

By this language we believe that the court specifically held that the 'seat belt defense' could be established on the issue of mitigation of damages and, by dicta, suggested...