Tipsword v. Melrose

• Decision Date: 18 September 1973
• Docket Number: No. 72--151,72--151
• Citation: 13 Ill.App.3d 1009,301 N.E.2d 614
• Parties: Gladys Cleo TIPSWORD, Administrator of the Estate of Floyd H. Tipsword, Deceased, and Individually, Plaintiff-Appellant, v. Armada M. MELROSE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 614

301 N.E.2d 614

13 Ill.App.3d 1009

Gladys Cleo TIPSWORD, Administrator of the Estate of Floyd H. Tipsword, Deceased, and Individually, Plaintiff-Appellant, v. Armada M. MELROSE, Defendant-Appellee.

No. 72--151.

Appellate Court of Illinois, Third District.

Sept. 18, 1973.

Rehearing Denied Oct. 15, 1973.

Philip C. Zimmerly, Champaign, Francis J. Householter, Kankakee, for plaintiff-appellant.

Robert McKnelly, Ackman, McKnelly, Reagan & Taube, Kankakee, for defendant-appellee.

SCOTT, Justice.

This is an appeal from the circuit court of Kankakee County.

The plaintiff, Gladys Cleo Tipsword, sued both individually and as the administrator of the estate of Floyd H. Tipsword to recover damages for the wrongful death occasioned by the alleged negligence of the defendant, Armada M. Melrose, in driving her automobile and failing to render assistance to an injured person. A second count was brought by the widow individually to recover for funeral and burial expenses.

A jury trial was held and the jury returned verdicts for the defendant and by their answer to a special interrogatory found contributory negligence on the part of the decedent, Floyd H. Tipsword.

The accident which led to the death of Floyd H. Tipsword took place at approximately 8:30 P.M. on August 22, 1968, at an intersection of two rural roads near Essex, Illinois. The deceased was driving a pickup truck eastbound on a freshly graveled east-west road and the defendant was proceeding north on a dusty gravel road. The defendant testified that when she approached the intersection she stopped, looked carefully both ways, and proceeded slowly into the intersection. Her line of vision to the west, the direction from which the decedent was driving, was approximately one-half mile.

She further testified that she did not see any lights, plumes of dust, or approaching vehicle until just before the impact when she saw the lights of the Tipsword vehicle.

There was testimony adduced for the plaintiff that the Tipsword vehicle had its lights on and was raising a plume of dust as it proceeded down the road. The further testimony of the driver following the Tipsword vehicle was that he followed the decedent's vehicle for about a mile and a half at a speed of twenty-five miles per hour, neither gaining or losing on the Tipsword vehicle, and that the vehicle was causing a big plume of dust. He further testified that when he saw a big cloud of dust and the lights of the Tipsword vehicle skewered around it took him approximately a minute to cover the last half mile to the scene of the accident.

After the collision Mrs. Melrose called out to the decedent to see if he were hurt, and ran for help, and caused a local resusitator squad to be summoned.

The cause of death was from hemorrhagic shock or loss of blood.

A further recital of essential facts will be set forth as they become pertinent to the issues presented for review.

The issues presented for review are (1) whether the jury was improperly instructed concerning the right of way statute, (2) whether the investigating state policeman was improperly allowed to reconstruct the collision, (3) whether the special interrogatory was improper in form, (4) whether the answer to the special interrogatory was contrary to the manifest weight of the evidence, (5) whether the verdict was contrary to the manifest weight of the evidence.

Directing our attention to the first issue raised, it is apparent that the plaintiff is primarily concerned with defendant's instruction 13A which was given to the jury. This instruction was as follows:

'At the time of the occurrence in question, there was in force in the State of Illinois a statute governing the operation of motor vehicles approaching intersections.

If two vehicles are approaching an intersection from different highways at such relative distances from the intersection that if each is being driven at a reasonable speed, the vehicle on the right will enter the intersection at about the same time, then this statute requires the driver of the vehicle on the left to yield the right of way to the vehicle on the right.

On the other hand, if two vehicles are approaching the intersection from different highways at such relative distances from the intersection that if each is being driven at a reasonable speed, the vehicle on the left will enter the intersection and pass beyond the line of travel of the vehicle on the right before the vehicle on the right enters the intersection, then this statute requires the driver of the vehicle on the right to yield the right of way to the vehicle on the left.

The fact that a vehicle has the right of way does not relieve its driver from the duty to exercise ordinary care in approaching, entering and driving through the intersection.

If you decide that the decedent or the defendant violated the statute on the occasion in question, then you may consider that fact together with all of the other facts and circumstances in evidence in determining whether or not the decedent or defendant was contributorily negligent or negligent before and at the time of the occurrence.'

Essentially this instruction is the one set forth in Illinois Pattern Jury Instructions as instruction 70.02 with the exception that an additional paragraph was added for the purpose of identifying the respective drivers of the motor vehicles to further make the instruction applicable to both the decedent and the defendant.

The plaintiff first contends that the instruction is prejudicial in that it implies a rigid, absolute right-of-way at an intersection to the vehicle on the right, and that the courts of our state have consistently held that the vehicle on the right does not have such an absolute right-of-way. We quarrel not with the cases cited by the plaintiff to the effect that the vehicle on the right is always entitled to the right-of-way; however, we do not find such rigidity or absoluteness in the instruction given. A mere reading of the fourth paragraph of the instruction belies such an interpretation since it is specifically stated:

'The fact that a vehicle has the right of way does not relieve its driver from the duty to exercise ordinary care in approaching, entering and driving through an intersection.'

Certainly such language cannot be construed to be either argumentative or peremptory. The instruction is intended and designed for open intersection cases such as the one in question and we deem it to be couched in terms fair to the parties involved.

The plaintiff would further argue that the defendant by her conduct waived the so-called statutory right-of-way and for this reason it was error to give instruction 13A. In considering this contention we must examine the record in order to ascertain as nearly as possible the factual situation surrounding the fatal accident. Such an examination discloses that the collision occurred at a rural intersection which was uncontrolled by traffic signs, signals or markings. As we have previously stated the plaintiff's decedent was traveling east and the defendant north, thereby placing the defendant on the right. The collision occurred at a time after sundown but before the setting in of darkness. Both roads being traveled were of gravel surface and quite narrow, ranging from ten to twelve feet in width. Visibility was hampered by tall growing corn in fields at all corners of the intersection. Both vehicles were using their headlights and both drivers were familiar with the intersection. Upon approaching the intersection the defendant stopped her vehicle so that upon reaching it her head was from six to eight feet south of the east-west roadway. After looking both to the left and right and failing to see anything she proceeded into the intersection and almost immediately thereafter the collision occurred.

The plaintiff's theory that the defendant's conduct is such as to constitute a waiver of the right-of-way privilege is based upon the proposition that such privilege is waived when one proceeds into an intersection without first maintaining a proper lookout. We agree with the holdings in the cases cited by the plaintiff, to-wit, Kirchoff v. Van Scoy, 301 Ill.App. 366, 22 N.E.2d 966; Roth v. Kanchier, 91 Ill.App.2d 111, 234 N.E.2d 59, in that the statutory privilege of right-of-way to the vehicle on the right can be waived but in these cases such waiver resulted from the driver of the vehicle on the right failing to maintain a proper lookout or failing to exercise due care for his own safety. No such failure to exercise due care or maintain a proper lookout exists in the instant case. On the contrary, we can only conclude that if plaintiff's decedent had used the same degree of care as that exercised by the defendant in approaching and crossing the intersection then there would have been no collision and resultant lawsuit.

[4-6] Why the defendant failed to see lights, plumes of dust or some indication of the plaintiff's decedent's approach to the intersection will never be known but her testimony as to the care she exercised is unrefuted and a party has the right to have the jury instructed on his theory of a case and the question as to what issues have been raised by the evidence falls within the discretion of the trial court. See Sherman v. City of Springfield,111 Ill.App.2d 39, 250 N.E.2d 537; Blanchard v. Lewis, 414 Ill. 515, 112 N.E.2d 167; Pantaleo v. Gamm, 106 Ill.App.2d 116, 245 N.E.2d 618. We do not believe that the trial court abused its discretion in giving instruction 13A to the jury. The question as to which driver has the right-of-way at an open intersection is indeed a question of fact for the jury and such an instruction is proper in order to assist the jury in making its determination. Bentley v. Olson, 324 Ill.App. 281, 58 N.E.2d 316; Payne v. Kingsley, 59 Ill.App.2d 245, 207 N.E.2d 177; Gauger v. Mills, 340 Ill.App. 1, 90 N.E.2d 790.

The plaintiff asserts that instruction No. 14 which was...