Smith v. City of Rock Island

• Decision Date: 16 September 1959
• Docket Number: Gen. No. 11272
• Citation: 22 Ill.App.2d 389,161 N.E.2d 369
• Parties: Mae SMITH, Appellant, v. CITY OF ROCK ISLAND, Appellee.
• Court: United States Appellate Court of Illinois

Page 369

161 N.E.2d 369

22 Ill.App.2d 389

Mae SMITH, Appellant, v. CITY OF ROCK ISLAND, Appellee.

Gen. No. 11272.

Appellate Court of Illinois, Second District, Second Division.

Sept. 16, 1959.

Rehearing Denied Oct. 13, 1959.

Eagle & Eagle, Rock Island, for appellant.

Isador I. Katz, Bernard Gillman, Rock Island, for appellee.

WRIGHT, Presiding Justice.

This action was commenced to recover damages for personal injuries sustained by plaintiff, Mae Smith, in an automobile collision which occurred on the night of January 3, 1957, at the intersection of Ninth Street and Thirty-first Avenue in Rock Island, Illinois. The jury returned a verdict finding the defendant, City of Rock Island, not guilty and judgment was entered thereon, from which judgment plaintiff appeals.

Ninth Street in the City of Rock Island is a north and south street of black construction, 24 feet in width. Thirty-first Avenue is an east and west four lane concrete street, 40 feet in width. On the night in question, Ninth Street was and for some 20 years prior thereto had been a through street on which there was maintained by the defendant, City of Rock Island, a stop sign at the northeast corner of the intersection facing traffic going west on Thirty-first Avenue and entering Ninth Street. About 8:40 o'clock P.M. on the night of January 3, 1957, the plaintiff, Mae Smith, was driving west on Thirty-first Avenue approaching Ninth Street. The night was dark and murky. The pavement was dry, the wind was blowing and the weather was threatening. Plaintiff testified that while proceeding west on Thirty-first Avenue, she was looking ahead and driving approximately 25 miles per hour with her headlights on; that she noticed that she was approaching an intersection but that it appeared to her to be a side street and that she did not see the stop sign at the northeast corner of the intersection and had no knowledge that one was there; that when she was four or five car lengths from the intersection she glanced to the left and then to the right, and seeing no vehicles she proceeded into the intersection and when about half way through said intersection her car was struck violently on the left side by a car going north on Ninth Street resulting in her injuries. Plaintiff contends that the proximate cause of the collision was the negligence of the City of Rock Island in failing to maintain a proper and legal stop sign at said intersection.

Plaintiff contends that the stop sign maintained by the defendant, City of Rock Island, at said intersection did not comply with the legal requirements prescribed in the State Manual and Specifications provided by Sec. 127, Chap. 95 1/2, Ill.Rev.Stat.1957, in that it was not reflectorized so that it could be seen at night; it had not been cleaned and inspected for 15 years; its dimensions are 18 X 18 inches whereas it should have been 24 X 24 inches; it was 4 feet 9 inches from the ground whereas it should have been 7 feet from the ground; it was located 4 feet 8 inches north of the north curb on Thirty-first Avenue whereas it should have been located within 1 to 3 feet from said north curb, and it was located 20 feet 10 inches east of the east curb of Ninth Street whereas it should have been 15 feet east. The stop sign was characterized by several witnesses as being black, never very clean, old, in need of paint, weathered out, inconspicuous and out of the range of headlights approaching from the east.

The serious nature of plaintiff's injuries, which included the loss of a leg, was undisputed but the vital issues of defendant's alleged negligence and of plaintiff's due care were seriously contested in the trial court as well as on this appeal. Defendant asserts that it is not liable as it was operating in a governmental function and, therefore, immune from liability. Defendant has filed no cross appeal or taken an appeal from the trial court's adverse ruling on this point and this question is now not before us for decision. Plaintiff contends that the trial court committed reversible error in certain of its rulings on the evidence and in giving instructions on behalf of the defendant.

One of the important elements for the plaintiff to prove was that she was in the exercise of due care and caution for her own safety at and immediately prior to the collision in question. In this respect, plaintiff testified that she was driving at a moderate rate of speed, looking ahead and that she was four or five car lengths from the intersection when she looked to the left and then to the right and seeing no cars approaching she proceeded into the intersection. The plaintiff on cross-examination was asked if the following questions were asked and whether she made the following answers at the time her discovery deposition was taken:

'Q. Do you remember this question and answer? Question: Mrs. Smith, at that time isn't it a fact that you stated you were looking straight ahead and you just glanced at the intersection and continued straight on without doing anything about your motor vehicle and the next thing you knew you were in the intersection and saw a car to your left, eight or ten feet? Answer: Yes.'

'Q. That is correct is it not, that is what happened? A. Yes.'

The plaintiff on redirect examination by her own counsel attempted to testify as to other matters covering the same subject in her deposition and the defendant objected on the ground that the matter was not important and that a deposition could be used only for impeachment. The trial court sustained these objections. The questions which were asked and the answers given by the plaintiff in her deposition sought to be introduced by the plaintiff were as follows:

'Q. Several times, Mrs. Smith, you have been asked whether you looked, you said you glanced; would you tell me what you mean by the word glanced, and what you mean by the word looked? A. I don't think you have time when you are driving to take a good long look, you glance quickly one way and the other.

'Q. Sort of bat your eyes side to side more or less? A. I think more than that. I was a stranger on that street and I was really looking, because I was looking for a road to get back over to go up 18th Avenue.'

Plaintiff contends that the trial court committed reversible error in not permitting her to be interrogated about the above statements made in her deposition after she had been cross-examined about similar statements made in the deposition. Stated in its simplest terms, the question is: If a witness or party is cross-examined about certain statements made in their deposition, can he or she then be asked about other statements made in the same deposition covering the same subject matter on redirect examination? This question has been considered and discussed recently in the cases of Biela v. Messner, 18 Ill.App.2d 236, 151 N.E.2d 406, and Goertz v. Chicago & North Western Railway Company, 19 Ill.App.2d 261, 153 N.E.2d 486.

The Biela case, supra, decided by the First Division of this court, was an action for personal injuries sustained by a pedestrian struck by an automobile while walking along the edge of a road at night. Defendant's attorney called the reporter who took plaintiff's deposition and portions of the deposition read by the reporter showed that plaintiff stated that part of the time he walked on the blacktop and part of the time off, and that he did not know whether or not he was on the blacktop or on the gravel just before he was struck. On cross-examination of the reporter, plaintiff sought to introduce other portions of the deposition to show that there was only one place about 125 feet north of Ogden Avenue where the water was covering the pavement. The trial court sustained defendant's objections to this line of cross-examination. The Appellate Court held that statements in a deposition which merely corroborated the testimony of the witness or party, could not be introduced and that the trial court properly excluded such statements. At pages 243-244, of 18 Ill.App.2d, at page 410 of 151 N.E.2d, the court said:

'The purpose of introducing evidence of statements out of court inconsistent with or contradictory to evidence given upon a trial is to discredit the witness, and such inconsistent or contradictory statements are never evidence of the fact. Such evidence cannot be overcome or explained by proving that the witness at some other time made a statement consistent with his testimony. The only way to meet evidence of a contradictory statement is to prove that the witness did not make it. Evidence of a previous statement consistent with the testimony of a witness is no more competent as evidence of the fact than the contradictory statement. For these reasons proof of the declarations of a witness out of court in corroboration of testimony given by him on the trial of the case is, as a general rule, inadmissible, even after he has been impeached or discredited. Chicago City Railway Co. v. Matthieson, 212 Ill. 292, 296, 72 N.E. 443; Eizerman v. Behn, 9 Ill.App.2d 263, 284, 132 N.E.2d 788. The additional portions of plaintiff's deposition sought to be introduced on cross-examination of the reporter in the instant case raised an inference that plaintiff walked on the pavement only at a point far south of the place where the accident occurred and were merely corroborative of plaintiff's position on the trial that he was walking on the gravel adjacent to the blacktop when he was struck.'

The Biela case, supra, is not in point factually with the question now before us for decision. In that case, defendant's attorney had the reporter testify that the plaintiff had made a statement on his deposition to the effect that prior to the accident he was walking on the blacktop part of the time and part of the time he was not and at the time he was struck by defendant's car he did not know whether he was on or off the blacktop. Plaintiff's attorney on cross-examination of the reporter...