Scerrino v. Dunlap

• Decision Date: 21 June 1957
• Docket Number: Gen. No. 46936
• Citation: 14 Ill.App.2d 355,144 N.E.2d 859
• Parties: Mary SCERRINO, Administratrix of the Estate of Joseph Dusik, Esther R. Bourne, Sylvia Roberti and Yustina Leonavicius, Appellants, v. Maxwell DUNLAP, Appellee.
• Court: United States Appellate Court of Illinois

Page 859

144 N.E.2d 859

14 Ill.App.2d 355

Mary SCERRINO, Administratrix of the Estate of Joseph Dusik Esther R. Bourne, Sylvia Roberti and Yustina Leonavicius, Appellants, v. Maxwell DUNLAP, Appellee.

Gen. No. 46936.

Appellate Court of Illinois, First District, Third Division.

June 21, 1957.

Peter Fitzpatrick, Chicago (Charles D. Snewind, Chicago, of counsel), for appellants.

Wyatt Jacobs and Jacobs, Miller, Hopkins & Rooney, Chicago (Joseph B. Lederleitner, Chicago, of counsel), for appellee.

FRIEND, Judge.

This is a consolidated suit by four plaintiffs for personal injuries which resulted when the parties were struck by an automobile driven by defendant. The jury returned answers in response to special interrogatories that neither the defendant nor the plaintiffs were guilty of wanton and wilful misconduct which proximately caused the accident, and that the defendant, together with all the plaintiffs, was guilty of negligence which proximately contributed to cause the occurrence. Along with the interrogatories, the jury returned separate verdicts finding the defendant not guilty as to each plaintiff, and judgments were entered accordingly. Plaintiffs filed a postverdict motion to set aside the answers to the interrogatories, and also the verdicts and the judgments, and to grant them a new trial; this motion was overruled. They appeal from the verdicts and judgments finding defendant not guilty, and from the order denying their post-trial motion.

The accident occurred at the intersection of Western Avenue and 35th Street in Chicago shortly before 7 o'clock on the morning of January 12, 1954. The temperature was below zero, the weather clear and the visibility good. Western Avenue is a north-south thoroughfare measuring fifty-five and one-half feet from curb to curb, with two lanes of streetcar tracks thereon. The area between the two tracks is somewhat off center, being about three and one-half feet closer to the west curb. Thirty-fifth Street, which intersects Western Avenue at right angles, is forty-two feet wide. Both streets are paved with asphalt or cement except for the portion of Western Avenue carrying the car tracks, which is brick. The sidewalk on the north side of 35th Street, west of Western Avenue, is twelve feet wide. On the northwest corner of the intersection of Western Avenue and 35th Street there is a two-story brick and frame building, the ground floor of which is occupied by a soda fountain and restaurant. There are no car tracks on 35th Street, which is used by CTA buses. All four corners of the intersection are equipped with traffic-control signal lights designed in the green-amber-red-walk sequence.

Joseph Dusik testified that at the time of the accident he was on his way to work. He had gotten off a southbound Western streetcar at 35th Street and, because of the subzero temperature, had gone into the restaurant on the northwest corner of Western and 35th to wait for the westbound 35th Street CTA bus to continue his trip to work. Some fifteen to twenty passengers had taken refuge in the restaurant from the cold, and on seeing the bus approach, they left the restaurant and started to walk east on the 35th Street north crosswalk toward the bus stop on the northeast corner of the intersection. 'I was just about in the west side streetcar tracks,' Mr. Dusik continued, 'when the accident occurred. * * * I was walking. Nobody was running that I know of. The lights were green for 35th Street. The only thing I know was that something hit me in the back and I was rendered unconscious. I came to in the hospital and it was three days before I knew anything.'

The other three plaintiffs gave substantially similar testimony with respect to the accident. They all stated that they walked across Western Avenue with the green or walk light. Both Esther Bourne and Yustina Leonavicius, like Joseph Dusik, lost consciousness after being struck by defendant's automobile; only Sylvia Roberti remained conscious, but she too, like the other plaintiffs, sustained serious injuries. Allie Dale Cooper, as an occurrence witness testifying on behalf of plaintiffs, corroborated their version of the accident. She too had been one of the group of people waiting in the restaurant and, with them, had started to cross Western in order to board the 35th Street bus; as she reached the car tracks she was struck by defendant's automobile and lost consciousness.

Edward S. Grybas, a Chicago police officer for the last nine years, was, with his partner Peter Jandersits, on duty in a squadrol car. At approximately 6:40 a. m. they received a call relative to the accident and immediately went to the scene. When they arrived at the intersection, so Officer Grybas testified, a group of people were scattered and lying about the intersection: one was lying in the northbound car track approximately twenty feet south of the north crosswalk; another in the southbound car track about fifteen feet south of the north crosswalk; a third was lying in the street some four feet from the southeast curb and near the south crosswalk; a fourth was lying on the southwest corner about five or six feet from the south crosswalk; and a fifth individual was lying about four feet from the northwest corner near the west crosswalk of 35th Street. Officer Grybas stated that he arrived at the scene of the accident about three minutes after he received the call, and immediately thereafter had a conversation with defendant at the scene, the substance of which is shown in the following excerpt from the abstract: 'I saw the defendant Maxwell Dunlap, at the scene of the accident and I had a conversation with him. When we arrived at the scene I said 'good Lord what happened' and this man came up to me and said 'I hit these people.' I said 'you struck all these people down' and he said 'Yes, sir, I did.' I said, 'Well, what happened?' and he said 'I don't know exactly what happened.' He said it happened so fast that he didn't even see them and that he had difficulty with visibility through the windshield because of the fact 'that it was frosted."

Defendant was the only occurrence witness testifying in his own behalf. He stated that on January 12, 1954 he owned a 1938 Buick four-door sedan which he had purchased in September 1951. On the night preceding the occurrence he had parked his car in front of his residence on West 21st street, and on the morning of the date in question came out early, got into his car and started the motor. He opened the windows 'so that the car wouldn't steam up on the inside,' sat in it for three to five minutes warming up his motor, and then turned his defroster on 'to keep them [the windows] from frosting up,' since the temperature was around zero. On leaving his home he proceeded to Western Avenue, then drove south on that thoroughfare along the right-hand side of the south-bound lane. He testified that visibility was good, and that the 'only thing * * * on my windshield was approximately a half an inch of frost along the upper part and on the outer edges of the windshield.' He had his lights on and could see several hundred feet. As to the occurrence, he testified as follows: 'As I approached 35th Street, between 34th Street I noticed a traffic light at 35th Street. I was about a half a block away and the light was changing from red, amber to green. I was at that time on the west side of the car tracks and traveling at a speed of between 20 and 25 miles an hour. As I continued toward 35th Street the lights were still green. They were green for north and south traffic at the time of the accident. When I was about 20 to 30 feet from the intersection I noticed some people on the northwest corner of the curb. They didn't cross. No one started to cross until I was 20 to 30 feet from the intersection. Then there was about a half a dozen or more people dashed out in front of my car and dashed across the street. When I was about 20 to 30 feet from the intersection, I applied my brakes as fast as I could to keep from hitting the people. My car stopped on the crosswalk. It may have been a foot or two over the south part of the north crosswalk on the northwest side. * * * I traveled about 30 feet from the time I first saw the people until I came to a complete stop. I did not have any difficulty in seeing the people nor in seeing the lights. * * * There were several people who dashed out in front of my car. I wouldn't say how many but there were probably six to eight. It happened so suddenly that I don't remember exactly how many were there. * * * I don't think any of the people that crossed in front of my car got completely across. As far as I know my car collided with only four people. * * * I think there were some people there that weren't involved in the accident or weren't hurt. I believe these people were crossing Western Avenue from west to east. I wouldn't say that there were as many as twenty people crossing Western Avenue at the time. I have traveled this route south on Western Avenue many times and I knew that 35th Street was a transfer point. I didn't see any of these people come out of the restaurant it happened so fast. The people dashed right out in front of me. I did not see any people on the east side of the street before the accident.' On cross-examination defendant at first categorically denied that he made any statement to any policeman about the windshield being frosted, but subsequently admitted that he made a statement to an officer at the hospital that his windshield 'was frosted a little bit.'

As the principal ground for reversal, it is urged on behalf of plaintiffs that the verdicts and the judgments were contrary to the manifest weight of the evidence and were produced by the prejudicial misconduct of defendant's counsel during the course of the trial and in his argument to the jury, that the court erred in submitting the question of plaintiffs' wanton and wilful conduct to the jury, and that the...