Duffy v. Cortesi

• Decision Date: 17 March 1954
• Docket Number: No. 32996,32996
• Citation: 119 N.E.2d 241,2 Ill.2d 511
• Parties: DUFFY et al. v. CORTESI.
• Court: Illinois Supreme Court

Page 241

119 N.E.2d 241

2 Ill.2d 511

DUFFY et al. v. CORTESI.

No. 32996.

Supreme Court of Illinois.

March 17, 1954.

Rehearing Denied May 19, 1954.

James A. Dooley, Chicago, for appellants.

Fuqua & Fuqua, Waukegan, for appellee.

BRISTOW, Justice.

In a proceeding for damages for personal injuries sustained by plaintiff, Jean Duffy, a minor, and for the wrongful death of Bertha Brockway, allegedly caused by the negligence of defendant, Raymond Cortesi, in driving his car into them as they were crossing the street, the jury returned verdicts in favor of defendant, and the circuit court of Lake County entered judgment thereon, which was affirmed by the Appellate Court. 350 Ill.App. 498, 113 N.E.2d 173. We have allowed plaintiffs' petition for leave to appeal therefrom.

The essential issues presented in this cause are whether a particular instruction to the jury constitutes reversible error, and whether the verdicts of the jury should have been set aside on the ground that they were unsupported by any evidence.

Inasmuch as the propriety of the jury verdicts is an issue herein, it is incumbent upon this court to review the evidence. From the record it appears that this proceeding was instituted by James Duffy, the father and next friend of the injured minor, and by Jean Duffy, as administrator of the estate of Bertha Brockway, her mother. At about 6:40 p. m., on June 23, 1949, the injured minor, age 5, and her grandmother, the decedent, were crossing Central Avenue on the west crosswalk, from north to south, at the intersection with Second Street in Highland Park. Defendant, Raymond Cortesi, was driving his car in a northerly direction on Second Street, and made a left turn onto Central Avenue to proceed in a westerly direction. Defendant claimed that he stopped at the intersection, and that as he turned left on Central Avenue he was blinded by the sun, and, therefore, only looked to the east, although he proceeded to make the left turn west. He also admitted that he cut the corner and started to turn left just before he reached the center of Central Avenue. He did not at any time see decedent and the child until after the impact.

The police captain who investigated the accident testified on behalf of plaintiffs that when he arrived on the scene, some 20 minutes after the accident he found some particles of glass that fitted into the eye glasses belonging to Bertha Brockway, located some 20 feet from the north curb of Central Avenue, and some 7 feet from the west line of the crosswalk that led from the northwest corner to the southwest corner of Central Avenue and Second Street. He also found a bloodstain about 32 feet west of the crosswalk, and tire skid marks east of that blood spot. He further stated that there were no parked cars on Central Avenue within 25 feet from the west crosswalk. That fact is corroborated by the testimony of another police officer who arrived at the scene earlier. This officer testified on behalf of plaintiffs that there were no cars parked along the street between the crosswalk and where the decedent was lying, which was about 32 feet west of the crosswalk and some 20 feet from the north curb, thereby indicating that at the time of the impact decedent and the minor had already proceeded almost half way across Central Avenue, which was 60 feet wide.

Defendant's witness, Robert Kane, who was in his car on Second Street facing south toward defendant, and getting ready to turn east on Central Avenue, testified that defendant did not bring his vehicle to a stop before making the left turn onto Central Avenue, and that as defendant turned his car west defendant's head was facing east. This circumstance caused the witness to look east to see what was attracting defendant's attention. The witness further stated that there was a car parked diagonally at the north curb on Central Avenue, although on cross-examination he admitted that at the coroner's inquest he did not refer to any parked cars. At one part of his testimony he stated that he did not see but only heard the impact because his view was blocked by the parked car, and, at another part, he stated that he saw the impact and that defendant was then west of the crosswalk. The witness also explained that while he was at the scene of the accident, someone kicked the decedent's glasses to the east.

Jean Duffy, the daughter of the decedent, and administrator of the estate, testified that her mother and daughter had gone shopping. She stated further that Bertha Brockway was a retired school teacher, 70 years of age, in good health at the time of the accident, and was habitually careful in crossing streets.

With reference to the foregoing evidence, the circuit court included among the instructions to the jury the following instruction, to which plaintiffs objected: 'If you find from the evidence and under the instructions of the court that the injuries, if any, suffered by the plaintiff, Jean Duffy, a minor, were caused proximately and solely by a person other than the defendant, then the plaintiff, Jean Duffy, a minor, cannot recover from the defendant.'

The jury returned verdicts finding the defendant not guilty as to the injuries sustained by the minor, and as to the death of Bertha Brockway. After overruling motions for a new trial, and for judgment notwithstanding the verdict, the court entered judgment on the verdicts. The Appellate Court, in affirming that judgment, held that the evidence was sufficient to warrant the verdicts, and that the controverted instruction did not constitute reversible error.

In adjudging first the propriety of the controverted instruction, it is established that it is the province of the trial court to inform the jury of the rules of law applicable to the facts adduced in evidence. Woods v. Chicago, B. & Q. R. Co., 306 Ill. 217, 137 N.E. 806. The trend of judicial opinion reveals a reluctance to reverse cases on the ground of technical errors in instructions; hence, courts have reiterated that the instructions will be considered as a whole, and where the jury has not been misled, and the complaining party's rights have not been prejudiced by minor irregularities, such errors will not be deemed grounds for reversal. Kavanaugh v. Washburn, 320 Ill.App. 250, 50 N.E.2d 761; Stephens v. Weigel, 336 Ill.App. 36, 82 N.E.2d 697; Anderson v. Brown, 340 Ill.App. 613, 92 N.E.2d 495. Where, however, the instruction is peremptory in character and directs a verdict for either party, it must necessarily contain all the facts and be complete within itself; it cannot be cured by any other instruction in the series. Hanson v. Trust Co. of Chicago, 380 Ill. 194, 43 N.E.2d 931; Horton v. Mozin, 341 Ill.App. 66, 92 N.E.2d 671; Bartels v. McGarvey, 327 Ill.App. 206, 63 N.E.2d 617. Moreover, it is deemed harmful and serious error where a peremptory instruction assumes facts not in evidence, and incorrectly interprets the law. Woods v. Chicago, B. & Q. R. Co., 306 Ill. 217, 137 N.E. 806.

The questioned instruction herein was peremptory in character and directed the jury that the minor could not recover if her injuries were caused by a person other than defendant. The third person obviously referred to in the instruction was the grandmother, Bertha Brockway, and the reasonable interpretation of the instruction was that the 5-year-old plaintiff could not recover against defendant if her grandmother's negligence caused her injuries.

The action of the child was directed solely against the defendant Cortesi, and it was his negligence which was at issue under the pleadings, and not the negligence of any other person. Hence, the instruction, by referring to injuries caused by a person other than defendant, injected an issue not involved in the cause. Moreover, under the evidence adduced, the only person who could have caused the injuries of the nature sustained by the child was the defendant by driving his car into her. Thus, the instruction, by suggesting that the jury could find that another person caused those injuries, assumes fact dehors the evidence. Furthermore, under the law, a 5-year-old minor cannot be deemed contributorily negligent, Wall v. Greene, 321 Ill.App. 161, 52 N.E.2d 303, and the negligence, if any, of the grandmother could not be imputed to the child to support a defense of contributory negligence, and bar her suit against defendant. Romine v. City of Watseka, 341 Ill.App. 370, 377, 91 N.E.2d 76; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370, 381, 27 N.E. 899, 21 L.R.A. 76. Therefore, the implication in this instruction that the negligence of the grandmother would preclude recovery by the child against defendant incorrectly states the law.

It is apparent, therefore, that this peremptory instruction, which cannot be cured by any other instruction, was improper and should not have been given. The Appellate Court recognized that the instruction was erroneous, but found that the jury could not have been misled by it. We cannot agree with that analysis. Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial. Crane Co. v. Hogan, 228 Ill. 338, 81 N.E. 1032. In the instant case it is evident that the erroneous peremptory instruction may have misled the jury and affected its verdict, inasmuch as the jury denied the 5-year-old child recovery against defendant, notwithstanding the substantial evidence of defendant's negligence as hereinafter noted, and the fact that the essential elements of the minor's cause were established by the evidence. The inclusion of this instruction, therefore, constituted reversible error.

In addition to the foregoing ground for reversal pl...