Panos v. McMahon

• Citation: 320 N.E.2d 185,23 Ill.App.3d 776
• Decision Date: 17 October 1974
• Docket Number: No. 56220,56220
• Parties: Stavros PANOS, a minor, by his father and next friend, Miltiadis Panos, Plaintiff-Appellant, v. Michael J. McMAHON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 185

320 N.E.2d 185

23 Ill.App.3d 776

Stavros PANOS, a minor, by his father and next friend Miltiadis Panos, Plaintiff-Appellant, v. Michael J. McMAHON, Defendant-Appellee.

No. 56220.

Appellate Court of Illinois, First District, Third Division.

Oct. 17, 1974.

Rehearing Denied Nov. 26, 1974.

Parrillo, Sims & Bresler, Chicago (David J. Weiss, Chicago, of counsel), for plaintiff-appellant.

Desort & Panek, Chicago (John M. Burke, Chicago, of counsel), for defendant-appellee.

MEJDA, Justice.

Plaintiff Stavros Panos, a minor, by his father and next friend, Miltiadis Panos, brought action against defendant, Michael J. McMahon, for injuries sustained by the minor when struck by defendant's automobile. The jury returned a verdict for defendant and judgment was entered thereon. Plaintiff appeals and contends that the trial court erred in the following:

1) refused plaintiff's instructions as to speed and lookout;

2) gave defendant's instruction and allowed closing argument on the absence of certain witnesses;

3) allowed defendant to testify that he was coming from a church council meeting;

4) refused to strike defense counsel's reference to the effect of any verdict; and

5) refused to include disability in the instruction on damages.

Plaintiff further contends that the verdict is against the manifest weight of the evidence.

Defendant contends in his answering brief that the appeal should be dismissed because plaintiff's abstract does not contain the notice of appeal.

The facts are as follows. On the evening of February 23, 1969, at about 9:00 P.M., plaintiff, his parents and two relatives were returning from a movie to the Panos home at 5647 West Washington Boulevard in Chicago. Mr. Panos parked his automobile across the street from his home, in the north side of Washington Boulevard, at a bus stop approximately 40 feet west of the intersection of Parkside Avenue. No cars were parked to the rear of the Panos car, but a few were parked in front of it. At the time, Washington Boulevard was an undivided 4-lane east-west street with parked cars on both sides. As the passengers left the automobile, plaintiff's mother was holding his hand. He was three years old at the time, and was dressed in dark clothing. Plaintiff bit his mother's hand and ran south across the street, into the path of defendant's east-bound automobile, and was struck by the car's left front fender. He was treated for a fracture of the right femur.

Plaintiff's father testified that after discharging his passengers he noticed defendant's automobile traveling east when it was about one block away and estimated its speed to be between 30 and 35 miles per hour. He did not continue to look at the car. He heard a thud, saw the car stop, and saw his son lying in the street. On cross-examination he stated that prior to the accident his son was biting his mother's hand.

Plaintiff's mother testified that she and her son were standing in the street near the curb, directly behind the Panos car while waiting for her husband. Plaintiff suddenly bit her hand and ran from north to south across Washington toward the Panos home. She stated that she observed defendant's approaching automobile for a period of two minutes and first saw it when it was a block and a half away. She estimated its traveling speed to be between 35 and 40 miles an hour. She saw her son as he was struck by the left front headlight of defendant's car.

Defendant testified that as he was traveling east on Washington Boulevard at about 25 miles an hour he noticed a parked car with the doors open and three or four adults alighting on the north side of the street. He was about 50 to 60 yards away. He further testified that when he saw the adults standing in the street he took his foot off the accelerator and put it on the brake pedal. He stated that he observed plaintiff prior to impact--at most, two feet away. He hit the brake and contact was made between the boy and the car at the left front fender. Both defendant and the police officer who examined his automobile at the hospital where plaintiff was treated testified that they had not seen any marks on the automobile other than 'brush marks' where the road dust had been disturbed on the left front fender just above the left front wheel.

I.

Defendant contends that the instant appeal should be dismissed because the abstract does not contain the notice of appeal, relying on the recent cases of Shaw v. Kronst (1973), 9 Ill.App.3d 807, 293 N.E.2d 153; and Gregory v. Williams (1973), 14 Ill.App.3d 905, 303 N.E.2d 621. Supreme Court Rule 342(e) (4) (Ill.Rev.Stat.1971, ch. 110A, par. 342(e)(4)) provides that in the abstract of the record on appeal, 'the judgment or order appealed from and the notice of appeal shall always be included.' In Shaw, the court found that the appellant failed to abstract the judgment order from which the appeal was taken, and held that that deficiency alone was sufficient for dismissal of the appeal. However, the court went on to state, 9 Ill.App.3d at page 809, 293 N.E.2d at page 155, 'No notice of appeal is included in the abstract. By reference to the record we are able to ascertain that a notice of appeal was filed . . .' The court there found a multitude of omissions, not only in the abstract filed but also in the record and the briefs in that case. At page 811, 293 N.E.2d at page 155, the court further stated: 'It is the duty of the appellant to present an abstract or excerpts sufficient to set forth every error relied upon for reversal. (Dempski v. Dempski, 27 Ill.2d 69, 187 N.E.2d 734.)' At page 810, 293 N.E.2d at page 155 the court explained: In order for the court of appeal to understand the questions which are presented it is essential that the court be able to determine these questions conveniently.' In Gregory, the court dismissed the appeal, holding that it could not decide whether the appellant was entitled to a judgment n.o.v. in the absence of a report of proceedings, and further, because the defendant failed to include the notice of appeal in the abstract, citing Shaw v. Kronst, Supra.

In the case before us, plaintiff's abstract of record on appeal contains the following at page 31: 'C95 Notice of Appeal filed may 28, 1971; C98 Notice of Appeal and Proof of Service filed May 28, 1971.' Unlike Shaw and Gregory, the plaintiff here has abstracted, at the very least, that a notice of appeal had been filed and made reference to its exact location in the record on appeal. The abstract does not specifically set forth the contents of the notice of appeal; nevertheless, we hold that the rule in Shaw and Gregory should not control in the instant appeal. There is no general confusion here as to the specific order from which the appeal is taken. No allegation has been made as to improper preparation or presentation of the briefs, record, or the remainder of the abstract. We have reviewed the record and find that the notice of appeal is proper as to form. The time expended by this court in reviewing the record for the contents of the notice of appeal does not justify a summary dismissal of the appeal. Supreme Court Rule 342(g) provides:

'The entire record on appeal, whether or not contained in the excerpts from record or abstract, is available to the reviewing court for examination or reference. Omission of any relevant portion of the record from the excerpts from record or abstract shall not prejudice a party unless the reviewing court finds that there has been no good-faith effort to comply with this rule.' (Ill.Rev.Stat.1971, ch. 110A, par. 342(g).

Although we do not condone the failure to properly abstract the notice of appeal by setting forth the contents verbatim, in the instant case defendant has suffered no prejudice. If the fact were otherwise we would follow the decisions of Shaw and Gregory. In view of the following discussion of the issues here raised, a summary dismissal would thwart, rather than further justice.

II.

Plaintiff first contends that the trial court erred in refusing to include in Plaintiff's Instruction No. 6 the portions stating:

1) Carelessly and negligently failed to yield the right of way;

2) Carelessly and negligently operated his automobile at a speed which was greater than was reasonable and proper with regard to traffic conditions and the use of the highway and endangered the safety of persons upon the highway and failed to decrease his speed when a special hazard existed with respect to pedestrians;

3) Carelessly and negligently failed to keep a proper lookout.

The instruction is based on Illinois Pattern Jury Instruction IPI No. 20.01. In the instruction conference the above deletions were made upon the granting of the objections of defendant to and exclusion in the original instruction as tendered, and plaintiff argued for the inclusion of those portions. The court deleted the issues of speed and lookout, stating that defendant testified he took his foot off the accelerator, which necessarily decreased the speed of his automobile, and that since he testified he saw a crowd around the parked car, defendant could not have seen the plaintiff and did not expect anyone to come out from behind the automobile. The court allowed certain other charges of negligence to remain in the instruction but deleted the three enumerated charges and directed plaintiff to include in his Plaintiff's Instruction No. 6 the charge that defendant otherwise, carelessly and negligently, owned, operated and maintained said vehicle. On appeal, plaintiff does not challenge the deletion of the right of way issue.

The general rule applicable to the granting or refusal of instructions tendered is that 'A party to a lawsuit has the right to have the jury instructed upon his theory of the case when there are pleadings and evidence which support his theory.' (Vincent v. Wesolowski (1967), 87 Ill.App.2d 477, 484, 232 N.E.2d 120, 125; see also Sherman v. City of Springfield (1969), 111 Ill.App.2d...