Randal v. Deka

• Decision Date: 24 April 1956
• Docket Number: Gen. No. 46743
• Citation: 134 N.E.2d 36,10 Ill.App.2d 10
• Parties: Earl RANDAL, Appellant, v. Clarence DEKA et al., Defendants, Clarence Deka, Appellee.
• Court: United States Appellate Court of Illinois

Page 36

134 N.E.2d 36

10 Ill.App.2d 10

Earl RANDAL, Appellant, v. Clarence DEKA et al., Defendants Clarence Deka, Appellee.

Gen. No. 46743.

Appellate Court of Illinois, First District, Second Division.

April 24, 1956.

Rehearing Denied May 3, 1956.

Arthur S. Gomberg and Joseph Reiff, Chicago, Samuel Nineberg, Chicago, of counsel, for appellant.

Erwin H. Wright, James E. Hastings, Chicago, for appellee.

McCORMICK, Presiding Justice.

An action was brought by the plaintiff against the defendant for personal injuries sustained by the plaintiff, a pedestrian, when he was struck by the automobile of defendant at the intersection of North avenue and Linder street in the City of Chicago. At the trial the jury returned a verdict in favor of the defendant. The trial court overruled plaintiff's motion for new trial and entered judgment on the verdict, from which judgment this appeal is taken.

The plaintiff urges that the court erred in giving instructions to the jury on behalf of the defendant and in certain rulings on the evidence, and that the verdict is against the manifest weight of the evidence.

The defendant's theory is that the plaintiff was guilty of contributory negligence in crossing the street directly in front of defendant's automobile; that the plaintiff was not crossing the street at a crosswalk and that, even if he was, he nevertheless was guilty of contributory negligence since he had been standing in a place of safety on the raised center portion of North avenue and left that place of safety when the defendant's car was so close to him that it could not be stopped; that the defendant was proceeding at a reasonable rate of speed and was in the exercise of ordinary care.

North avenue at the scene of the accident is about fifty feet wide. Down the center of that street is a raised concrete abutment two or three feet wide and four or five inches high. The east and west drives of North avenue are each approximately twenty-seven feet wide. Linder avenue from curb to curb is about twenty-five feet wide, and as it crosses North avenue jogs west, that is, Linder avenue on the south side of North avenue is farther west than Linder avenue on the north side of North avenue. The accident occurred September 6, 1954 at about 8 o'clock in the evening. The pavement was dry. The weather was clear, and though it was dusk at the time of the accident, visibility was good.

At the time of the accident plaintiff was going south across North avenue. The evidence is in conflict as to whether or not at the time he was within the lines of the east crosswalk of Linder avenue. There is no dispute that the automobile driven by the defendant struck the plaintiff, and that he was thrown forward and to the right of the car. He was thrown five feet according to testimony of defendant's witness. Plaintiff was a man thirty-two years of age in previous good health, and he sustained serious injuries. The defendant at the time of the accident was eighteen years old. The evidence is in conflict as to the speed at which the defendant was traveling and as to the efforts he made to avoid striking the plaintiff.

The plaintiff urges that the jury was improperly instructed.

The court gave nineteen instructions at the request of the defendant. Eight of these concluded with 'you should find the defendant not guilty' or similar language. In addition, other instructions, while not peremptory in form, contained statements to the effect that under certain circumstances the plaintiff would not be entitled to recover. Seven of the instructions were concerned with the contributory negligence of the plaintiff. Two separate instructions which we will discuss later set out in haec verba the identical statutory provision governing the duty of a pedestrian crossing a roadway at any point other than a marked crosswalk.

In Chism v. Decatur Newspapers, Inc., 340 Ill.App. 42, 91 N.E.2d 114, 117, the court uses language which is particularly apt and applicable to the case now before us. In the opinion the court says:

'The defendant tendered 25 instructions, of which 21 were given. Six of these instructions concluded 'The jury must find for the defendant', or 'You must find the defendant not guilty', or words to that effect. Nine instructions mentioned that the plaintiff must be in the exercise of ordinary care for his own safety or that he must not be guilty of contributory negigence.

'One instruction, defendant's (a), mentioned the matter of due care twice; and defendant's instruction (1) three times mentioned the duty of the jury to disregard sympathy.

'This was not a complicated case. It was a typical negligence action, and no unique legal points were involved. It is true that the theories of how the accident occurred were in conflict, but we see nothing about the case that should make the instructions so lengthy, involved and repetitious. The wise trend of the courts of this state is definitely against such instructions. Baker v. Thompson, 337 Ill.App. 327, 85 N.E.2d 924, and the cases therein referred to.

'It is not proper for a party to a lawsuit to ask a witness to repeat 8 or 9 times a bit of evidence that is favorable to the interrogator for the purpose of impressing that fact upon a jury, and by the same token a jury should be told once only about each proposition of law. To do otherwise will lead to a contest between the litigants to see how often they can repeat that which seems favorable to their cause.

'We are fully in accord with the view expressed in Baker v. Thompson, supra, and feel that when defense attorneys in negligence actions tender an excessive number of instructions, filled with repetition and containing many of a peremptory nature, they do so at their own peril in the event the case is reviewed. Such instructions cannot aid the jury members, but rather will hinder them in the performance of their duty of giving to each side a fair and impartial trial.'

This case was decided in 1950. Since that time our Appellate courts in the other Districts have similarly condemned the practice of giving an inordinate number of instructions peremptory in form. Stone v. Warehouse & Terminal Cartage Co., 6 Ill.App.2d 229, 127 N.E.2d 260; Schacht v. Elliott, 345 Ill.App. 302, 102 N.E.2d 750; Loucks v. Pierce, 341 Ill.App. 253, 93 N.E.2d 372; Triolo v. Frisella, 3 Ill.App.2d 200, 121 N.E.2d 49; Moore v. Daydif, 7 Ill.App.2d 534, 130 N.E.2d 119.

The warning contained in these decisions has not been heeded by many counsel who still seem to believe that in order to fulfill their duty to their client it is necessary that they overwhelm the trial court with a plethora of instructions peremptory in form. It would seem that many counsel have not as yet fully grasped the fact that the purpose of giving instructions is to enlighten the jury and not to create confusion. A constant repetition by the court in its instructions to the jury of the peremptory demand that under certain circumstances they shall find for one party or the other may cause the jury to believe that the court has taken a definite stand upon the issues involved in the lawsuit. There is such a thing as a litigant being instructed out of court. Under the facts and circumstances in the case before us the court erred in giving the eight peremptory instructions which are objected to.

The defendant argues that most of the instructions given in the instant case were instructions which had been approved by some reviewing court in this State, and, therefore, the trial court properly submitted them to the jury. The fact that an instruction has been approved by a reviewing court in some case does not confer an unlimited license upon a trial court to read it to the jury in each and every case before it. The propriety of the instruction depends upon the nature of each individual case.

Many of the instructions were repetitious and the defendant in his brief admits that at least one of the instructions could have properly been combined with another instruction. Instructions which repeat the same legal proposition to the jury are not proper.

The plaintiff also urges that many of the other instructions were erroneous in form, among these being defendant's instructions 35 and 36. Instruction 35 merely quoted the following subsection of the statute (Ill.Rev.Stat.1955, chap. 95 1/2, par. 172(a)): '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.' Instruction 36, after repeating the section of the statute contained in instruction 35, added the following language:

'If the jury believe from the evidence in this case that the plaintiff, while crossing North Avenue at a point other than a marked crosswalk, or an unmarked crosswalk at an intersection, failed or refused to yield the right of way to the automobile of defendant and that such failure on his part, if any, was negligent and that such negligence, if any, proximately caused or contributed to cause the accident in question, then your verdict should be for the defendant.'

The plaintiff urges that the instruction was erroneous in that it omitted the subparagraph of the same statute which provides:

'(d) Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.'

Both instruction 35 and instruction 36, because subparagraph (d) of the statute was omitted therefrom, did not fully and completely state the law governing the issue before the court. Stegall v. Carlson, 6 Ill.App.2d 388, 128 N.E.2d 352; and see Taylor v. Ries, 3 Ill.App.2d 256, 121 N.E.2d 352; Parkin v. Rigdon, 1 Ill.App.2d 586, 118 N.E.2d 342; Breitmeier v. Sutera, 327...