Figarelli v. Ihde

• Decision Date: 14 May 1976
• Docket Number: Nos. 59554,59559 and 59986,s. 59554
• Citation: 39 Ill.App.3d 1023,351 N.E.2d 624
• Parties: Mary FIGARELLI, Successor Administrator of the Estate of Michelle Figarelli, Deceased, and Mary Figarelli, Individually and as Executrix of the Estate of Michael Figarelli, Deceased, Plaintiff-Appellee, v. Sandra Lee IHDE and Good Humor Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 624

351 N.E.2d 624

39 Ill.App.3d 1023

Mary FIGARELLI, Successor Administrator of the Estate of Michelle Figarelli, Deceased, and Mary Figarelli Individually and as Executrix of the Estate of Michael Figarelli, Deceased, Plaintiff-Appellee, v. Sandra Lee IHDE and Good Humor Corporation, Defendants-Appellants.

Nos. 59554, 59559 and 59986.

Appellate Court of Illinois, First District, Fifth Division.

May 14, 1976.

As Modified on Denial of Rehearing July 23, 1976.

Joseph B. Lederleitner, Pretzel, Stouffer, Nolan & Rooney, Chartered, Chicago, for defendants-appellants.

Philip H. Corboy, Chicago (William J. Harte and Paul B. Episcope, Chicago, of counsel), for plaintiff-appellee.

BARRETT, Justice.

This action was bought to recover damages for a death and for family expenses sustained as the result of an accident in which a vehicle driven by Sandra Lee Ihde struck and killed five-year old Michelle Figarelli as she proceeded into the street from in front of a parked Good Humor Ice-Cream truck.

Actions were brought in negligence against Ihde and Good Humor. An additional count was brought against Good Humor on the ground of alleged wilful and wanton misconduct, upon which the jury returned a finding of not guilty. A counterclaim was brought by Good Humor against Ihde for indemnification; the trial court directed a verdict in favor of counter-defendants. ¹ The jury returned verdicts of $56,000 against both defendants, which were reduced by the trial court to $31,704.78 in accordance with the statutory limit then in effect.

On August 19, 1966, at about one o'clock in the afternoon, an ice-cream truck owned by the Good Humor Corporation and operated by its employee, Kazuo Kajimura, parked parallel facing south alongside the curb of Maple Avenue, a one-way, four lane street in Berwyn, Illinois. There is a playground-park on the right side of the street where the truck had parked, and homes opposite thereto.

Linda Bavone testified that she was at the park on the day in question and observed approximately 20 children from the park and the general area standing around the ice-cream truck. Several children climbed on the truck and rang its bells without interference by the driver who stood at the rear selling ice cream. Bavone testified that she observed the decedent along with a friend, Vicki Paganelli, at the rear of the truck looking at pictures of the ice cream bars and their prices. Bavone said that Vicki and decedent then ran along the side of the truck on the curb side toward the front of the truck, each stepping off the curb into the street. She stated that Vicki was in the middle of the street when the decedent left the curb, and that the decedent was about half way across the street when she was struck by Ihde's car. Bavone said that she had never heard the Good Humor driver warn the children who had gathered around the truck about any traffic hazards, nor did she ever see him look to his rear or to his left for approaching traffic. Upon direct examination by plaintiff's counsel, Bavone testified that she did not observe any lights flashing on the truck as she sat behind it on her bicycle. The witness testified that the car driven by Ihde had been proceeding down the street at a speed which evidenced no consideration for the fact that an ice-cream truck was present. She had heard the screeching sound of the brakes and observed that Ihde's vehicle was now halted about seven houses down from where the Good Humor truck was parked.

Vicki Paganelli testified that she had been playing with decedent before the occurrence and that when she heard the bells she ran across the street to the ice-cream truck. In response to questioning by plaintiff's counsel she stated that she did not notice any flashing lights on the truck as she stood at the rear purchasing ice cream. After she had purchased her ice cream and crossed the street to return to her home she heard the sound of the brakes from the area directly behind her. She looked toward the disturbance and saw decedent lying in the middle of the street in front of the Ihde vehicle.

William Signore, who had bought ice cream for his own children, testified that he had seen decedent and Vicki Paganelli around the ice-cream truck immediately before the occurrence. He did not observe the driver of the ice-cream truck do anything to control the crowd of children around the truck. He also testified that he did not see any flashing lights at the rear of the truck.

Berwyn Police Officer William Koop testified that when he arrived at the scene he found decedent lying in the middle of the street in front of Mrs. Ihde's Pontiac. He measured the distance as 93 feet from the front of the Good Humor ice-cream truck. On cross-examination the officer testified that he examined the brakes and they were in good order. On redirect examination Officer Koop stated that he did not notice whether the ice-cream truck had any flashing amber lights.

Sandra Lee Ihde was ruled incompetent under the Dead Man's Act and was precluded from testifying.

Kazuo Kajimura testified that he began to ring the bells on his ice-cream truck as he approached the park in order to get the attention of the children in the area. He stated that he does not recall there having been any other cars parked along the curb behind the truck on Maple Avenue. The speed of the passing Ihde vehicle was not slow, he said, although it did not travel with any exceptional speed either. He testified that he made no effort at the particular location to slow down or stop traffic either through the use of his hands or his truck, or in any other way.

[1-4] Defendant Good Humor contends that the trial court committed reversible error in submitting instruction No. 24 to the jury. This instruction, which incorporated portions of Ill.Rev.Stat.1965, ch. 95 1/2, par. 210, § 113, read:

'There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

'Flashing lights are prohibited on motor vehicles except as a means for indicating the presence of a vehicular hazard requiring unusual care in approaching, overtaking or passing.'

If you decide that a party violated the statute on the occasion in question then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.'

This instruction was tendered by plaintiff's counsel with the intention that the jury, in determining whether defendant violated the statute, consider only the exception to the prohibition which permitted the use of flashing lights under certain circumstances, rather than consider a violation of the prohibition itself. This purpose was clearly evidenced by the fact that plaintiff's counsel extracted testimony from almost every witness to the effect that the ice-cream truck was not equipped with flashing lights, and then argued to the jury in his closing remarks that defendant may by law use flashing lights to warn of a vehicular traffic hazard. Thus, in essence, the jury was instructed that they may decide that defendant violated a duty to activate his flashing lights, an act which in itself was only discretionary. It is elementary that one cannot violate a duty which one is not required to exercise. It follows that 'instructions concerning violations of a statute or ordinance should not be given unless the evidence is adequate to support a violation.' IPI, 60.00, P. 250, citing McAttee v. Mantzoros, 340 Ill.App. 216...