Lawson v. Jorjorian

• Decision Date: 31 January 1938
• Docket Number: Gen. No. 39759.
• Citation: 293 Ill.App. 431,12 N.E.2d 894
• Parties: LAWSON v. JORJORIAN.
• Court: United States Appellate Court of Illinois

293 Ill.App. 431

12 N.E.2d 894

LAWSON

v.JORJORIAN.

Gen. No. 39759.

Appellate Court of Illinois, First District, First Division.

Jan. 31, 1938.

Appeal from Circuit Court, Cook County; John R. Caverly, Judge.

Action by John H. Lawson against Nishan Bartev Jorjorian for damages to an automobile. From a judgment for plaintiff, defendant appeals.

Reversed. Donald M. Roche and Abraham Lepine, both of Chicago, for appellant.

Paul F. Kinnare, of Chicago, for appellee.

MATCHETT, Justice.

On May 29, 1935, in the village of Wilmette at the intersection of Greenwood avenue and Sixteenth street, the Packard automobile of plaintiff was struck by another Packard driven by the defendant, Jorjorian. Plaintiff's automobile at the time in question was being driven by his wife, Mrs. Lawson, and a friend, Mrs. Harbison, sat in the seat with her at the right-hand side. Plaintiff brought suit before a justice of the peace for damage sustained by the automobile and obtained judgment. Defendant appealed to the circuit court where the cause was again tried by the court without a jury. At the conclusion of all the evidence there was a finding for plaintiff for $175 with judgment thereon, and defendant brings this further appeal to this court.

Greenwood avenue in the village of Wilmette is a public east and west highway; it is intercepted by Sixteenth street, another public highway running north and south. At this particular intersection, however, Sixteenth street jogs to the west, as the evidence shows, about 17 feet. The land about the intersection was vacant and unoccupied at the time in question; there was one house on the east side of Sixteenth street, about 100 feet south of the intersection. The northeast corner of the intersection was covered by weeds, which the evidence indicates were from 4 to 5 feet in height. Both streets at this place are approximately 22 feet wide. It was a clear day and the street was dry. Mrs. Lawson, driving plaintiff's car, turned from Green Bay road into Greenwood avenue and proceeded in a westerly direction. She says that as she approached the intersection she looked to the north but did not see any traffic coming. Mrs. Lawson and Mrs. Harbison both testify that the Lawson car was being driven at a speed of from 20 to 25 miles an hour. When Mrs. Lawson had driven the car more than half way across the intersection, defendant, driving his Packard at an undetermined speed, which Mrs. Harbison says was greater than that at which the Lawson car was going, hit the Lawson car, striking the right front fender, scraping the running board and badly damaging the body of the car. The impact drove the Lawson car about 50 feet south, where it stopped. Just as the cars were about to collide Mrs. Lawson turned her car toward the left and the defendant swung his to the right in order to avert the collision. No occupant of either car was injured but the automobiles were badly damaged. It is not claimed that the damages are excessive.

Defendant testified that when he approached the intersection he first looked to the right to see if there was any traffic; he did not see any; he looked to his left, and, as he says, was “just going into the intersection and I had crossed over the north curb of Greenwood avenue when I saw the other car coming to my left there.” He says it was then too late for him to do much, so he swung his car to the right while the car coming from the east also turned to try to avoid him, and the front right fender on the Lawson car struck right into his car and the impact of it swung his car around and brought him across the southwest curb. He got out of the car and met Mrs. Lawson half way between the two cars; he asked if she was hurt and she asked if he was hurt; it appeared that everybody was all right; they exchanged their license numbers, names, and addresses; by that time people had begun to gather around and he did not see Mrs. Lawson after that. A garage company came and took his car away. Mrs. Lawson testified (and defendant does not deny) that she said to defendant, “ ‘I did not see you coming.’ I said, ‘Didn't you see me?’ He said, ‘No.’ And I asked him why. Well, he said just before he reached the intersection his door opened, his front, right front door, and he leaned over to close his door and he did not see me and I did not see him.”

On cross-examination defendant was asked what distance he was north of the intersection when he opened the left front door of his car. His attorney interposed the statement that the testimony was, his right front door was open. The attorney for plaintiff then said:

“Q. You heard the statement here made about you having opened the door and closed the door. Did you do that? A. Yes, I did.

“Q. Where were you from the intersection when that happened? A. I was, oh, I should judge about half way the distance from here across the street. I would say about 75 feet or so.

“Q. Did that have anything at all to do with your--

“The Court: Don't ask him that.

“Mr. Lepine: Q. When this occurred, you closed the door before you reached the intersection? A. Oh, yes.

“Q. At the time you reached the intersection were you looking at your door? A. No, sir, I was not.”

Defendant was asked:

“Q. Which door of the car came open before you reached the intersection? A. The right front.

“Q. Did you open it or did it come open itself? A. No, it was not--it was not open, in fact. You know there is a double latch on the Packard door and just the one latch was open, that is all.

“Q. What did you do then? A. I reached over and shut it.

“Q. Do you remember having a conversation with Mrs. Lawson after the accident; do you remember her saying, ‘Why didn't you see me?’ and do you remember what you said? A. No, I am sorry, I don't.

“Q. Do you remember when this case was tried before a J. P. and you were on the stand that I asked you, ‘Did you tell Mrs. Lawson after the accident that you did not see her because your right front door came open?’ and you said, ‘Yes'? Do you remember that question being asked and that answer being made? A. No; I don't remember.”

Defendant insists that the judgment should be reversed because as a matter of law the driver of plaintiff's car was guilty of contributory negligence in failing to observe the approach of defendant's car and in failing to yield the right of way to the defendant. It is argued that, although Mrs. Lawson testified that she looked to her right before proceeding across the intersection, it is evident under all the circumstances that she did not look because if she had looked she must have seen, and cases such as Greenwald...