Kanousis v. Lasham Cartage Co.

• Decision Date: 19 November 1947
• Docket Number: Gen. No. 43880.
• Citation: 76 N.E.2d 239,332 Ill.App. 525
• Parties: KANOUSIS v. LASHAM CARTAGE CO. et al.
• Court: United States Appellate Court of Illinois

332 Ill.App. 525

76 N.E.2d 239

KANOUSIS

v.LASHAM CARTAGE CO. et al.

Gen. No. 43880.

Appellate Court of Illinois, First District, Third Division.

Nov. 19, 1947.

Appeal from Superior Court, Cook County; E. I. Frankhauser, Judge.

Action by Andrew P. Kanousis against Lasham Cartage Company and another for personal injuries sustained by plaintiff when struck by named defendant's truck. Verdict and judgment for plaintiff and defendants appeal.

Judgment reversed and cause remanded with directions.Kirkland, Fleming, Green, Martin & Ellis, of Chicago (William H. Symmes, David Jacker and Charles M. Rush, all of Chicago, of counsel), for appellants.

Joseph D. Ryan and Louis G. Davidson, both of Chicago, for appellee.

BURKE, Justice.

On July 19, 1944 Andrew P. Kanousis, about 55 years old, was employed as a second cook in a restaurant at 1721 West 18th Street, Chicago. He lived in the vicinity of 34th Street and Cottage Grove Avenue. On his way home from work that morning he stopped at another restaurant operated by his employer at 428 South Halsted Street. He left there about 1:30 a. m. and boarded a streetcar at Harrison and Halsted Streets. He got off the streetcar at Van Buren and Dearborn Streets. He then walked to the north side of Van Buren Street and east on Van Buren Street, intending to board a southbound Cottage Grove Avenue car at Wabash Avenue and Van Buren Street. State Street runs in a northernly and southernly direction and is one block east of Dearborn Street. Wabash Avenue runs in the same direction and is one block east of State Street. The distance between Van Buren and Congress Streets, the latter being the first block south of Van Buren Street, is about 440 feet. He arrived at the northwest corner of State and Van Buren Streets, and while walking in an easternly direction from the west curb of State Street, was struck by a truck owned by the Lasham Cartage Company, a corporation, then being driven in a northernly direction by Guy Bovee, its servant. The truck consisted of a tractor and trailer. The tractor was an Autocar about 10 feet long of the snub nose type with a cab over the engine so that the windshield was almost as far forward as the front bumper, giving the driver a good view. The trailer was about 20 feet long. Mr. Kanousis was taken by the police to St. Luke's Hospital, where he remained for three weeks. A brace was prescribed for his back two months later. His injuries consisted of lacerations, fractured ribs and aggravation of an arthritic spine condition. He also claims that there were fractures of some of the arthritic spurs in his spine.

In a two count complaint filed in the Superior Court of Cook County by Andrew P. Kanousis against the Lasham Cartage Company and Guy Bovee, defendants were charged, in the first count, with various acts of negligence, and in the second count with various acts of wilful and wanton misconduct. Issue was joined. A trial before the court and a jury resulted in a verdict finding the defendants guilty and assessing plaintiff's damages at $11,000. The court sustained defendants' motion to strike the second, or wilful and wanton count. Motion by defendants and each of them to direct a verdict and for a new trial were overruled. The court entered judgment on the verdict and defendants appealed.

State Street is 60 feet 4 inches wide from curb to curb. Two car tracks occupy 15 feet 5 inches of space in the center of the street. Van Buren Street runs east and west and is 38 feet wide from curb to curb. The intersection is well lighted. The weather was clear and the street dry. Traffic signals are located on all 4 corners and alternately show green, yellow and red lights. The mishap occurred at about 2:10 a. m. There were only two occurrence witnesses, the plaintiff and Bovee. Plaintiff testified that when he got to the northwest corner of State and Van Buren Streets the traffic lights were green for Van Buren Street traffic; that as he reached the west curb and started to cross State Street he saw the headlights of a northbound vehicle, which was then a block south of Van Buren Street; that he walked east on the north crosswalk; that there were no other vehicles or streetcars in the vicinity of the intersection; that he continued to watch the traffic lights and the approaching truck from time to time; that the truck ‘had the red light’ and would have to stop or slow down; that when he, plaintiff, reached the east rail of the northbound track, he last noticed the traffic lights; that they were still green for east and westbound traffic; that just after he passed the northbound streetcar tracks, he saw the truck about 35 or 40 feet away ‘coming pretty fast’; that it was traveling at a speed of 25 to 30 miles an hour; that it did not reduce its speed before the impact; that the truck was traveling 2 or 3 feet outside the tracks; that when plaintiff saw it, he tried to jump back; that the truck swung to the right; that no horn was blown; that the front of it struck him; that it hurled him about 20 feet to the north; and that the truck went on until it came to a stop at the east curb, with the back end of the trailer about 50 or 60 feet north of the crosswalk.

There was evidence that after the impact plaintiff lay a foot or two outside of the east rail of the northbound tracks, and 18 to 25 feet north of the north building line of Van Buren Street, unconscious or semiconscious. The left front headlight of the tractor was bent and the glass was broken. The driver, Bovee, did not see plaintiff at any time before the tractor struck him, did not know where he came from, and did not know he had struck a person until after the occurrence. Bovee testified that he was driving north on State Street at a speed of 15 to 20 miles an hour as he approached Van Buren Street; that as he approached that street the traffic lights changed; that at the time he drove into the intersection, the lights were green for him; that when his truck was approximately 50 feet north of the north crosswalk of Van Buren Street he heard a thud and glass breaking; that he looked into his rear view mirror; that he saw a man lying in the street; that he stopped his truck so that it was about 30 feet from the injured man; and that he immediately got out to assist him. A police officer who arrived at the scene shortly after the occurrence, testified that plaintiff was lying in the street 20 to 25 feet north of the crosswalk.

Bovee testified further that as his truck approached the intersection there was a streetcar on the southbound rails north of Van Buren Street; that as he approached the intersection there were two automobiles ahead of him, waiting for the lights to change; that he slowed down his truck sufficiently to give these automobiles ahead of him a chance ‘to get out of the way’; that he got ‘up probably 25 to 30 feet behind those cars'; that as he came to the intersection he was ‘slowing down’; that he picked up speed after he ‘slowed down and shifted gears'; that he ‘shifted back up again’; and that as he crossed Van Buren Street he picked up ‘a little speed.’ Answering the question, ‘Did you continue to pick up speed until you got to the north crosswalk?’ he said: ‘Perhaps, yes.’ He testified further that traveling at a speed of 15 or 20 miles an hour he could ‘probably stop in 15 or 20 feet’, and that proceeding at a speed of 30 miles an hour he could stop ‘within a distance of 25 feet.’ Bovee did not mention a streetcar when discussing the occurrence with the district police officers, nor did he mention it to the police from the Accident Prevention Division, to whom he gave a signed statement. In the signed statement he told the police there was no obstruction to his view ahead or to the left; that he could see ‘two blocks' ahead; and that he could see the ‘buildings' on the left. On the trial he denied that he could see the buildings to his left because ‘the streetcar would have stopped that.’ A few questions later he admitted that he did tell the police he could see the buildings to his left. The headlights of the truck were lit. There was evidence that plaintiff was struck when he was a foot or two east of the east rail of the northbound track.

Defendants maintain that the giving of instruction No. 9, tendered by plaintiff, constituted reversible error in that although it amounted to a peremptory instruction, it failed to include the necessary element of freedom from contributory negligence. This instruction reads as follows: ‘You are instructed that the plaintiff is entitled to recover for the aggravation of a pre-existing ailment or condition to the extent that you may find such aggravation, if any, to be the natural and proximate result of the accident, if you find the defendants guilty of negligence, as charged in the plaintiff's complaint.’

Plaintiff asserts that it is not a peremptory instruction; that it deals with the question of damages; that it did not direct a verdict; and that it has repeatedly been held that such instruction need not include the element of plaintiff's due care, where, as in the instant case, the subject is fully covered by other instructions in the series. We agree with defendants that if an instruction is so phrased that it amounts to directing a verdict, although not specifically directing a verdict for one party or another, it comes within the rules applying to peremptory instructions. In Pardridge v. Cutler, 168 Ill. 504, 512, 48 N.E. 125, 127, the court said: ‘The law applicable to different questions may be stated in separate instructions, and the entire law applicable to all the questions involved in a case need not be stated in each. In such case the instructions supplement each other, and if they present the law fairly when viewed as a series, it will be sufficient. But if an instruction directs a verdict for either party, or amounts to such a direction in case the jury shall find certain facts, it must necessarily contain...