Johnson v. Pendergast

• Decision Date: 06 June 1923
• Docket Number: No. 15162.,15162.
• Citation: 139 N.E. 407,308 Ill. 255
• Parties: JOHNSON v. PENDERGAST.
• Court: Illinois Supreme Court

308 Ill. 255

139 N.E. 407

JOHNSON

v.PENDERGAST.

No. 15162.

Supreme Court of Illinois.

April 18, 1923.

Rehearing Denied June 6, 1923.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Winnebago County; Robert K. Welsh, Judge.

Action by Floyd Johnson against E. F. Pendergast. Judgment for plaintiff was affirmed by the Appellate Court (225 Ill. App. 624), and defendant brings certiorari.

Reversed and remanded.

Reynolds & Reckhow, of Rockford (Morris J. Hinchcliff, of Rockford, and Sigmund Livingston, of Chicago, of counsel), for plaintiff in error.

Garrett, Maynard & Hull, of Rockford, for defendant in error.

CARTWRIGHT, J.

The Appellate Court for the Second District affirmed the judgment recovered by Floyd Johnson, defendant in error, in the circuit court of Winnebago county, against E. F. Pendergast, plaintiff in error, for $4,800 for personal injuries resulting from a collision of a motorcycle on which the defendant in error was riding with the automobile of the plaintiff in error, in the city of Rockford on April 23, 1919, and a writ of certiorari was awarded for a review of the judgment.

The original declaration contained nine counts, and included the E. F. Pendergast Company, a corporation, and Margaret I. Pendergast, with the plaintiff in error, as defendants. At the conclusion of the evidence the plaintiff by leave of court amended the first count and withdrew from the jury all of the declaration except the first count as amended and the seventh count, and the cause was submitted on those counts. The first count as amended charged that the defendant, through his agent, Margaret I. Pendergast, was possessed of, operating, and driving an automobile in a westerly direction on the northerly side of West State street, in the city of Rockford, which was then a thickly populated business section of the city; that section 20 of chapter 61 of the revised ordinances of the city of Rockford in force at the time was as follows:

‘Sec. 20. Before slowing up or stopping, drivers shall signal to those behind by raising the whip or hand vertically, and in turning while in motion, or in starting to turn from standstill, a signal shall be given by indicating by the whip or hand the direction in which the turn is to be made.’

The count also charged that section 3 of said ordinances contained the following:

‘The word ‘driver’ shall include the rider or driver of a horse, the rider of wheels or the operator of a motor vehicle or street car.'

It was then charged that Margaret I. Pendergast, in charge of the automobile,failed to give any warning or signal by the hand or otherwise, as provided in said city ordinances, and negligently and suddenly turned the automobile directly across and toward the middle of West State street directly in front of plaintiff, then riding a motorcycle, and by reason of such negligence the collision occurred, with the consequent injury and damage. The seventh count made the same averments as to the ownership of the automobile, the fact that it was being driven by Margaret I. Pendergast and the portion of the street being a thickly populated business section, and charged general negligence of Margaret I. Pendergast in driving and managing the automobile so that it struck and ran into and collided with the motorcycle on which the plaintiff was riding.

[1] In the petition for a writ of certiorari it was claimed that the court erred in giving instructions 2, 4, 5, and 11 at the instance of the plaintiff, and in refusing to give instructions 2, 5, and 6 tendered by the defendant, and argument was presented in support of this claim. A certified copy of the brief and argument for the plaintiff in error filed in the Appellate Court has been filed here, and shows that, while in the brief error was alleged in the giving and refusing of these instructions, no error was pointed out in argument except as to instructions 5 and 11, and under the rule alleged errors were waived and cannot be availed of in this court.

Instruction 5 given for the plaintiff, alleged to have been erroneous and supported by argument in the Appellate Court, is as follows:

‘If the jury believe from the evidence that at the time of the accident in question, April 23, 1919, there was in force and effect, in the city of Rockford, an ordinance which, among other things, provided as follows: ‘Before slowing up or stopping drivers shall signal to those behind by raising the whip or hand vertically and in turning while in motion or in starting to turn from standstill a signal shall be given by indicating with the whip or hand the direction in which the turn is to be made.’ ‘The word ‘driver’ shall include the rider or driver of a horse, the rider of wheels and the operator of a motor vehicle or street car'-the court instructs the jury, if they find from the evidence that the defendant, immediately prior to the accident in question, through a servant or agent, failed to comply with the foregoing provision of said ordinance, and that the place where said accident took place was within the limits of the city of Rockford, then such failure is prima facie negligence, and if the jury believes from the evidence that the defendant was so negligent, and that such negligence was the proximate cause of the injury to plaintiff, then the plaintiff is entitled to recover, provided the jury find from the evidence that at the time of the injury and immediately prior thereto the plaintiff was in the exercise of ordinary care and caution for his own safety.'

To determine whether the court erred in giving this instruction, it is necessary to state in a general was the evidence to which it was to be applied by the jury.

The collision occurred at a point on West State street about 75 feet west of the west line of the intersection of the street with Winnebago street, running north and south across West State street. It was about noon, and the street practically clear and unobstructed. The street is 44.3 feet wide from curb to curb, with two street car tracks in the center. The distance between the outer rails and the curb on each side is about 14.2 feet. Defendant was the owner of an automobile which was being driven by his daughter, Margaret I. Pendergast (now Margaret I. Schmauss). She came from the east and stopped the car, headed west, on the north side of the street at the curb in front of a grocery store located 60 feet west of the street intersection and went into the store and purchased some groceries. When she came out of the store the automobile of Dr. P. L. Markley was standing in front of her automobile at a distanceof 3 or 4 feet, and there was an automobile standing behind her car a distance of 3 or 4 feet, which had stopped there while she was in the store. She took her position at the steering wheel at the left-hand side, next the roadway. Dr. Markley was cranking his car trying to get it started, and she turned her car, which was a long touring car, to the left past that car, when the plaintiff, riding a 10 horse power Harley-Davidson twin-cylinder motorcycle, was coming from the east. The motorcycle struck the automobile at the front end of the running board at the fender, and plaintiff's leg was broken in two places.

The plaintiff testified that he was from 10 to 15 feet from the automobile when he saw it turn away from the curbing and he had seen the car standing there prior to that time; that there was no signal or warning of any kind before it turned; that he was going about 12 miles an hour when he first saw the automobile turn out, and at the time he struck the automobile he was going about 7 miles an hour; that it shot straight out and covered all four railroad tracks and was headed south; that he pulled to the left and tried to avoid a collision, and then turned to the right, but could not get by there, so he threw his clutch, put on his brakes, and went straight; that when he started to go around the automobile it was moving slowly and was then speeded up.

As to the location of the automobile after the accident, one witness for the plaintiff said that it was headed directly south, covering the car tracks; another that it was headed pretty near south; another that it was facing a little diagonally across the street, but not directly west; another that it was headed, not directly west, but diagonally across the street; and another that it was facing nearly due south. As to the speed at which the plaintiff was driving, one of his witnesses testified that he was driving between 12 and 15 miles per hour just...