Moran v. Gatz

• Decision Date: 13 September 1945
• Docket Number: No 28528.,28528.
• Citation: 390 Ill. 478,62 N.E.2d 443
• Parties: MORAN v. GATZ.
• Court: Illinois Supreme Court

390 Ill. 478

62 N.E.2d 443

MORAN

v.GATZ.

No 28528.

Supreme Court of Illinois.

May 23, 1945.

Rehearing Denied Sept. 13, 1945.

Appeal from First Division, Appellate Court, First District, on Appeal from the Superior Court, Cook County; Donald S. McKinlay, Judge.

Action by Alice Moran against Charles Gatz for personal injuries. From a judgment of the Appellate Court, 57 N.E.2d 281, 324 Ill.App. 45, reversing a judgment for plaintiff without remanding, plaintiff appeals.

Reversed and remanded, with directions.

Royal W. Irwin, of Chicago, for appellant.

Barrett, Barrett, Costello & Barrett, of Chicago (John W. Costello, of Chicago, of counsel), for appellee.

STONE, Justice.

Appellant recovered a judgment in the superior court of Cook county against appellee for injuries sustained by being struck at a street intersection by an automobile driven by appellee. The Appellate Court, First District, reversed the judgment without remanding, holding that plaintiff was guilty to contributory negligence as matter of law. That is the pivotal question here. The facts, as shown by plaintiff's evidence, are in substance as follows:

Appellant, a woman 61 years of age, while crossing One Hundred Fifteenth street on the east crosswalk, from north to south, at Wentworth avenue, on a dark, drizzling night, at about 9:15 o'clock, was struck by appellee's automobile when about four feet from the south curb of One Hundred Fifteenth street. There was an electric street light on a pole at the southwest corner of the intersection. A tavern located on the southeast corner was open with lights burning and a lighted beer sign on the corner of the building. Appellant testified she stopped at the north curb, looked and saw cars coming from the east; that she waited until they had passed, and before stepping off the curb she looked west and saw two or three cars about a block away, coming east. She started to walk across the crosswalk. After taking three or four steps, which brought her within three of four feet of the streetcar track in the center of One Hundred Fifteenth street, she glanced west and saw no cars. She continued to walk south on the cross-walk and when she reached a point about four feet from the south curb she was struck by appellee's car and severely injured. No horn was sounded, and no other warning of the approach of the car was given. Appellee testified he did not see appellant until he hit her; that he was driving with his dim or city driving lights on, which did not throw a light to the left of the car, but to the right; that he could not see a person to the left of his car, as the range of the lights was to the right. A jury returned a verdict in favor of appellant for $5,000 and judgment was entered thereon for that amount.

The Appellate Court held that appellant must be held to have seen-what she could have readily seen, had she looked,-i. e., appellee's approaching car, and having ignored it, and continued in a normal walk, placed herself in the path of appellee's car, and this was contributory negligence on her part as a matter of law.

The errors assigned are, that the Appellate Court erred in construction of the right-of-way statute in determining whether appellant exercised due care, and in holding in effect that a pedestrian crossing an intersection on a crosswalk has no right to presume that a motorist will accord him the right of way.

The right-of-way statute, so far as applicable to this inquiry (Ill.Rev.Stat.1943, chap. 95 1/2, sec. 171), provides that ‘Where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.’

The Appellate Court, reviewing plaintiff's evidence, found that (57 N.E.2d 281, 282) ‘The evidence most favorable to the plaintiff with reasonable inferences to be drawn from it, is to the effect that plaintiff, before leaving the curb on the northeast corner, looked to the west and saw two or three cars coming east about a block away; that she then started south on the crosswalk across 115th street; that when three or four steps from the streetcar track she again ‘partially’ looked to the west, or glanced to the west, and did not see any car and proceeded across the street; that in the meantime defendant was approaching Wentworth avenue from the west, driving on the south side of 115th street at a good moderate speed, with his city driving lights burning and illuminating the pavement ahead about 50 feet and with his windshield wipers going.' The inquiry here is whether the record shows that appellant was guilty of contributory negligence as a matter of law. This court has not heretofore passed upon the rights of a pedestrian crossing a street at a crosswalk, as defined by the quoted section of the act.

Regardless of the statute in question, however, it has long been the rule in this State that the driver of a vehicle on a city street is charged with a duty to exercise reasonable care in the operation of his vehicle and to have his vehicle under such control as will enable him to avoid collision with other vehicles or pedestrians. He is charged with notice that pedestrians may cross the street over which he is driving, and other vehicles may be traveling over a cross street. Harrison v. Bingheim, 350 Ill. 269, 182 N.E. 750. He is also to anticipate that cars parked at the curb might turn into the street. Sullivan v. William Ohlhaver Co., 291 Ill. 359, 126 N.E. 191. In this case, appellee testified that he could not see a pedestrian approaching his car from the left, as the range of his city driving lights was to the right. It was therefore his duty to so drive his car as to have it under such control as to enable him to avoid collision with other vehicles or pedestrians, and whether he was driving in accordance with his duty to yield the right of way to pedestrians at a crosswalk was a question of fact for the jury.

On the other hand, it was appellant's duty to so conduct herself as to be free from contributory negligence. She had no right to rely entirely on the fact that she had the right of way. Neither had she a right to unreasonably intrude herself into the midst of traffic. The danger of such an act on her part would be apparent and have a natural tendency to hold her back, and if she carelessly got herself into such a position, the law charges her with contributory negligence and leaves her remediless.

Though not previously passed upon in this State, courts of other States have construed statutes and ordinances identical with or similar to our act. The Supreme Court of Wisonsin, in McDonald v. Wickstrand, 206 Wis. 58, 238 N.W. 820, in passing upon a statute similar to ours giving a pedestrian the right of way, held that the plaintiff there was unquestionably where he had a right to be and was entitled to the benefit of the assurance that the law required oncoming drivers to yield him the right of way. It was also held, however, that the fact of plaintiff's right in this regard did not excuse negligence on his part contributing to the injury, and the question as to what constituted reasonable observation before entering upon the crossing was an issue to be considered by the jury in determining whether or not his conduct was negligent.

In Adler v. Martin, 179 Ala. 97, 59 So. 597, it was declared that whether a pedestrian is guilty of negligence per se in failing to look up and down a street for approaching vehicles before attempting to cross, or whether such failure is negligence at all, is a question for the jury...