Parkin v. Rigdon
Decision Date | 09 March 1954 |
Docket Number | Gen. No. 9917 |
Citation | 118 N.E.2d 342,1 Ill.App.2d 586 |
Parties | PARKIN v. RIGDON. |
Court | United States Appellate Court of Illinois |
Robert Weiner, Walter T. Day, Springfield, for appellant.
Gillespie, Burke & Gillespie, Springfield, Louis F. Gillespie, Frederick H. Stone, Springfield, of counsel, for appellee.
This is a personal injury suit growing out of injuries sustained by the plaintiff while crossing Fifth Street in Springfield, Illinois, and being struck by a car driven by the defendant. The plaintiff was a pedestrian. The evidence shows that the street in question is some 40 feet wide, and well lighted at the point of the injury and that there were apparently no obstructions to the view of the motorist or pedestrian. The place where the plaintiff was struck is in dispute, the plaintiff claiming it was in an unmarked crosswalk area and the defendant disputing this point. There is no question that the plaintiff was severely injured. The cause was tried before a jury and the jury brought in a verdict for the defendant. Motion for a new trial was denied and judgment was entered on the verdict of the jury. From that judgment the plaintiff appeals.
The appeal raises three questions as error. 1. That the giving of defendant's instruction No. 17 was error. 2. That the giving of defendant's instruction No. 7 was error. 3. That the court erred in refusing to permit X-ray photographs to be taken by the jury to the jury room during their deliberations.
Defendant's instruction No. 17 was in the following language:
'You are instructed that at the time of the accident in question there was in full force and effect and binding upon the parties hereto, a certain statute of the State of Illinois, providing as follows: 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway'. You are further instructed that a crosswalk under the law of this State is defined as follows:
'The instruction directed a verdict, and errors it contains are not cured by other instructions.'
In the case of Breitmeier v. Sutera, 327 Ill.App. 221, 63 N.E.2d 667, an instruction, again, almost identical with defendant's instruction No. 17 in this case, was held objectionable because it did not correctly state the law with respect to the rights of a pedestrian on the public highway or the duties of a vehicle operator. The Breitmeier case cited the case of Moran v. Gatz, 390 Ill. 478, 62 N.E.2d 443, 446. In the Moran case the situation is the reverse of the present case, but the reasoning of the court may well be applicable to this case. There the Court said: In the instant case, even if the proof showed that the plaintiff was crossing the street at a place other than a marked or unmarked crosswalk, and the vehicle had the right of way, that right is not absolute. It must depend upon the particular facts and circumstances of the case. In the case of Walker v. Shea-Matson Trucking Co., 344 Ill.App. 466, 101 N.E.2d 449, 452, a right of way instruction was given. In that case the question was one of right of way between two vehicles in an intersection. The instruction given in that case was much broader than the one given here, as the jury was instructed to take into consideration all the other facts and circumstances in the case. Yet the court in that case held the instruction bad in the following language:
In the case of Anderson v. Middleton, 350 Ill.App. 59, 111 N.E.2d 904, 905, an instruction was given as to the right of way of a vehicle on a preferential highway. The court in holding the giving of the instruction without qualifications as to the rights and duties of each, was reversible error. The court there said:
The importance of correct instructions was commented on in the case of Sharp v. Brown, 349 Ill.App. 269, 110 N.E.2d 541, 543, the court there saying: 'It has long been the law that a jury must be especially accurately instructed if the case be one where the facts are close and where a verdict could easily favor either party in the suit.' This is very true where the evidence is in dispute, as in this case, as to whether the plaintiff was crossing in a crosswalk area, and had the right of way, under certain circumstances, or whether or not he was crossing at another point and the vehicle had the right of way, under certain circumstances. In other words, the instruction should take into consideration all the facts and circumstances. If the evidence showed that the plaintiff was...
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