Perrine v. Charles T. Bisch & Son

• Citation: 105 N.E.2d 543,346 Ill.App. 321
• Decision Date: 11 March 1952
• Docket Number: Gen. No. 9804
• Parties: PERRINE v. CHARLES T. BISCH & SON et al. ESPER et al. v. CHARLES T. BISCH & SON.
• Court: United States Appellate Court of Illinois

Page 543

105 N.E.2d 543

346 Ill.App. 321

PERRINE v. CHARLES T. BISCH & SON et al.

ESPER et al. v. CHARLES T. BISCH & SON.

Gen. No. 9804.

Appellate Court of Illinois, Third District.

March 11, 1952.

Rehearing Denied May 6, 1952.

Mark O. Roberts, Springfield (A. M. Fitzgerald, Walter T. Day, Springfield, of counsel), for appellants.

G. W. Horsley, Springfiled, for appellee.

REYNOLDS, Justice.

This is an appeal from judgments in the Circuit Court of Sangamon County and comes to this court as a consolidated appeal. Grace Perrine, plaintiff-appellee, recovered judgment in the amount of $20,000 against the defendants-appellees, Charles T. Bisch & Son, a corporation and Mae Esper. Charles T. Bisch & Son, a corporation and Mae Esper appeal from that judgment. Mae Esper and L. W. Esper counterclaimed against Bisch & Son and the judgment of the Circuit Court was in favor of the counterdefendant Bisch & Son and against Mae Esper and L. W. Esper, counterclaimants. Mae Esper and L. W. Esper appeal from that judgment. The appeals have been consolidated and will be decided by this Court in one opinion.

This case was originally appealed directly to the Supreme Court, but the Supreme Court found that the case was wrongfully appealed to that court and ordered that the same be transferred to this court. 409 Ill. 175, 98 N.E.2d 754.

On March 22, 1948, Grace Perrine was riding in the ambulance of Charles T. Bisch & Son, with her husband, who had suddenly become ill and the ambulance called. Driving the ambulance was one John L. McDonald, an employee of Bisch & Son. Riding in the front seat beside McDonald was another employee. Bisch & Son operate ambulance service in the City of Springfield, Illinois, for hire. The ambulance, leaving the Perrine home, proceeded to Capitol Avenue, which runs east and west and then proceeded west on Capital Avenue to the point of the collision. Mae Esper, driving alone in the car of her husband, L. W. Esper, was driving north on Sixth Street, which runs north and south. The collision occurred at the intersection of Capitol Avenue and Sixth Street, which is one of the busy intersections of the City of Springfield. The intersection has stop and go signals with red, amber and green lights. While there is some dispute, there seems little question that the ambulance had its flasher lights on and was warning traffic with its siren, both on Capitol Avenue and on the streets between the Perrine home and Capitol Avenue, it had used. Evidence of the speed of the ambulance varies from the 15 to 20 miles per hour estimate of the driver McDonald, to the 50 to 60 miles per hour estimate of Mrs. Esper. Mrs. Esper drove into the intersection and was hit broadside by the ambulance. Estimates of her speed vary from 15 to 35 miles per hour. Mrs. Esper testified that she did not see the ambulance until she was a third or a fourth of the way across the south half of the intersection; that she looked to the right as she entered the intersection and did not see anything; that her windows were up and that she did not hear the siren; that the ambulance was so close when she first saw it that she did not have time to do anything to avoid the collision. McDonald, the driver of the ambulance, testified that he did not see the Esper car until it was in front of him; that he stood the ambulance on its nose and then the collision occurred. There seems to have been two sudden stops, one when McDonald applied the brakes, and then when the ambulance collided with the Esper car. Mrs. Perrine, riding in the back of the ambulance with her husband, was thrown about in the inside of the ambulance and received the injuries for which she brings suit.

As to the traffic lights, there is some dispute but from all the evidence, it is fairly well established that the red light was against McDonald, the driver of the ambulance, when he was 45 feet away from the intersection. According to the officers who investigated the accident immediately afterwards, McDonald said that he thought the light was red and that he thought he ran the red light; that he intended to go into the intersection whether the light was red or not.

The evidence is also conflicting as to the color of the traffic lights when Mrs. Esper drove into the intersection. Mrs. Esper said the lights turned green for north and south traffic when she was 100 feet south of the intersection. Robert Hansen testified the light changed to yellow when Mrs. Esper reached the crosswalk. Dr. Campbell testified the light was green for north and south traffic when he heard the ambulance coming. The ambulance then was about a block away. Betty Roberts said that as the ambulance was entering the intersection the lights changed to red for east and west traffic and that as the lights were changing, she saw the Esper car headed into the intersection. C. A. Livingstone said the lights were green for north and south traffic when Mrs. Esper entered the intersection. There is some testimony that the Esper car drove into the intersection at an angle or 'catty-cornered' as some witnesses put it. Betty Roberts said the Esper car angled to the west in the intersection.

All of these questions were questions of fact and were determined by the jury in its verdict.

There can be no doubt that the Bisch ambulance was an emergency vehicle. The fact that it was privately owned is immaterial. The Motor Vehicle Act defines an 'Authorized emergency vehicle' as follows: 'Police vehicles, vehicles of the fire department and ambulances * * *.' Section 99(d) Chapter 95 1/2 Illinois Revised Statutes, 1947.

The right of the Legislature to give certain preference to an emergency vehicle is questioned in the appeal. The right of the Legislature to define and set up rules for an emergency vehicle seems obvious under the police power of the State. 'In the exercise of the police power the legislature may enact those measures which have a tendency to promate the comfort, health, safety, morals or welfare of society'. Fenske Bros. Inc. v. Upholsterers' International Union, 358 Ill. 239, 193 N.E. 112, 117, 97 A.L.R. 1318. In that case the court said: 'It is well settled that the Legislature may, in the exercise of the police power of the state, enact those measures which have a tendency to promote the public comfort, health, safety, morals, or welfare of society.' Massie v. Cessna, 239 Ill. 352, 88 N.E. 152, 28 L.R.A.,N.S., 1108; Condon v. Village of Forest Park, 278 Ill. 218, 115 N.E. 825, L.R.A.1917E, 314. The police power is considered capable of development and modification within certain limits, so that the powers of governmental control may be adequate and meet changing social and economic conditions. The power is not circumscribed by precedents arising out of past conditions but is elastic and capable of expansion in order to keep pace with human progress. It is not a fixed quantity, but it is the expression of social, economic and political conditions. People v. John Doe of Rosehill Cemetery, 334 Ill. 555, 166 N.E. 112; State Public Utilities Comm. v. City of Quincy, 290 Ill. 360, 125 N.E. 374. In the exercise of this power the legislature may enact laws regulating, restraining or prohibiting anything harmful to the welfare of the people, even though such regulation, restraint or prohibition interferes with the liberty or property of an individual. Neither the Fourteenth Amendment to the Federal Constitution, nor any provision of the Constitution of this State was designed to interfere with the police power to enact and enforce laws for the protection of the health, peace, morals or general welfare of the people. Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; People v. Anderson, 355 Ill. 289, 189 N.E. 338; Town of Cheney's Grove v. Van Scoyoc, 357 Ill. 52, 191 N.E. 289.

And in the case of Christy v. Elliott, 216 Ill. 31, at page 39, 74 N.E. 1035, 1039, 1 L.R.A.,N.S., 215, the court said: 'We have said: 'The state inherently possesses, and the General Assembly may lawfully exercise, such power of restraint upon private rights as may be found to the necessary and appropriate to promote the health, comfort, safety and welfare of society. This power is known as the police power of the state. In the exercise of this power the General Assembly may, by valid enactments--i. e., 'due process of law'--prohibit all things hurtful to the comfort, safety, and welfare of society, even though the prohibition invade the right of liberty or property of an individual.' Bailey v. People, 190 Ill. 28, 60 N.E. 98, 54 L.R.A. 838; Booth v. People, 186 Ill. 43, 57 N.E. 798, 50 L.R.A. 762; Ruhstrat v. People, 185 Ill. 133, 57 N.E. 41, 49 L.R.A. 181.'

The very nature of an ambulance when it is responding to an emergency, lifts it out of the class of an ordinary vehicle. It then becomes an emergency vehicle and except as is necessary to observe the rules of safety, both for itself and others using the highway, it is entitled to precedence over other vehicles, all other circumstances being equal. In the instant case, the Bisch ambulance was transporting a stricken man to a hospital as quickly as possible. It thus became an emergency vehicle under the meaning of the Statute. We cannot agree with the contention of defendant Esper that a private ambulance stands on a...