Opinion
Gen. No. 9,584.
Opinion filed March 12, 1948. Released for publication April 7, 1948.
1. INSTRUCTIONS, § 6 — accuracy required in instructions. In action involving collision of automobiles of plaintiff and defendant at street intersection, where one instruction was given for plaintiff and seventeen for defendant, and there was a verdict of not guilty, because of the conflict in the evidence, the law required that the instructions for defendant state the law with accuracy and be free of error which might mislead the jury.
See Callaghan's Illinois Digest, same topic and section number.
2. INSTRUCTIONS, § 20fn_ — repetition of words guilty and not guilty. In an automobile collision case, in which one instruction was given for plaintiff and seventeen far defendant, and there was a verdict of not guilty, repeating the words "guilty" and "not guilty" twelve times in defendant's instructions and stating in them eleven times that plaintiff could not recover, and repeating the burden of proof twenty-one times, was unnecessary and prejudicial repetition.
3. INSTRUCTIONS, § 16fn_ — term "material" in instruction to be explained. An instruction was erroneous which did not tell jury what facts were material, when the jury was told that if it believed from the evidence any witness made statements at variance with his testimony "concerning material matter," then they might determine to what extent this tended to impeach him.
4. AUTOMOBILES AND MOTOR VEHICLES, § 145.1fn_ — possibility of defendant's negligence not to be ignored. In an action involving collision of automobiles of plaintiff and defendant at intersection of streets, an instruction for defendant that if jury believed from the evidence defendant exercised ordinary care at the time and place to avoid injury to plaintiff they should find defendant not guilty, was erroneous since it ignored the question whether defendant was guilty of negligence in placing himself in that situation.
5. INSTRUCTIONS, § 22fn_ — undue emphasis on requirement of proof. Instructions, which stated that before plaintiff could recover he must prove that he was "actually" in the exercise of due care and caution for his own safety and must prove that his injuries "really" existed, were erroneous as argumentative and putting undue emphasis on what plaintiff had to prove.
6. INSTRUCTIONS, § 22fn_ — undue emphasis on rule of law. In action involving collision of automobiles of plaintiff and defendant at street intersection, where one instruction was given for plaintiff and seventeen for defendant, an instruction for defendant concluding that the rule as to burden of proof was binding in law and must govern the jury and the jury have no right to disregard it and adopt another, but should apply said rule "and adhere strictly to it," was argumentative and unduly emphasized the rule of law stated in such instruction, and was no more appropriate than if added to each of the eighteen given instructions.
7. AUTOMOBILES AND MOTOR VEHICLES, § 147fn_ — erroneoas use of presumptions as to guilt or innocence in negligence case. In action involving collision of automobiles of plaintiff and defendant at street intersection, while the burden of proof was on plaintiff, an instruction for defendant that the law did not presume that the defendant was guilty of the charges against him, but rather the law presumed him not guilty of specific charges, was erroneous and prejudicial in a case of this nature.
8. INSTRUCTIONS, § 127fn_ — erroneous statement on negligence and contributory negligence. In an action involving collision of automobiles of plaintiff and defendant at street intersection, an instruction for defendant that it was the duty of the jury to find him not guilty unless they found the plaintiff was guilty of no want of ordinary care was erroneous since plaintiff might have been guilty of some want of ordinary care but in order to bar his recovery his negligence or want of ordinary care must have proximately contributed to cause his injury.
9. AUTOMOBILES AND MOTOR VEHICLES, § 131.1fn_ — erroneous instruction as to right of way. In action involving collision of automobiles at intersection without stop signs on either street, where defendant, whose car was to right, testified that he saw plaintiff's car enter intersection first when a short distance out but his brakes were not effective and he ran into plaintiff's car, instruction, that city ordinance provided that driver should give right of way to vehicle approaching along intersecting street from right, and which in effect placed no duty on defendant and told jury that defendant's car had right of way regardless of its speed and distance from intersection when plaintiff's car entered therein, was incorrect and misleading.
10. INSTRUCTIONS, § 169fn_ — error to encourage disagreement of jury. An instruction admonishing jurors that no juror should consent to a verdict which did not meet the approval of his conscience and judgment tended to encourage disagreement and should not be given.
11. INSTRUCTIONS, § 168fn_ — no recovery where evidence evenly balanced. Under the weight of authority, instructions which stated that if the evidence was evenly balanced plaintiff could not recover were proper.
Appeal by plaintiff from the Circuit Court of Tazewell county; the Hon. JOHN T. CULBERTSON, JR., Judge, presiding. Heard in this court at the February term, 1948. Reversed and remanded for a new trial. Opinion filed March 12, 1948. Released for publication April 7, 1948.
CASSIDY, SLOAN CRUTCHER, of Peoria, for appellant.
KNOBLOCK, McCONNELL KENNEDY and WILLIAM C. NICOL, all of Peoria, for appellee; LOUIS F. KNOBLOCK and WILLIAM C. NICOL, both of Peoria, of counsel.
This is an appeal by the plaintiff appellant, William R. Alexander, from a judgment of the circuit court in favor of the defendant appellee, Ulysses S. Sullivan, based on the verdict of a jury in an automobile collision case finding the defendant not guilty.
No question of pleading is involved.
The collision occurred about 7:30 a. m. on October 27, 1944, in the City of Pekin in the intersection of Park avenue and Eighth street.
Park avenue runs east and west and Eighth street runs north and south. The plaintiff was driving his car north and the defendant was driving his car west. The left front of the defendant's car struck the plaintiff's car immediately in front of the right rear door. The plaintiff's testimony showed or tended to show that he received substantial injuries to his person.
The plaintiff contends that the verdict is against the manifest weight of the evidence. We are inclined to agree with this contention, but inasmuch as the case must be reversed and remanded for a new trial because of erroneous instructions, we make no further comment on the evidence.
Because of the conflict in the evidence, the law required that the instructions given in behalf of the defendant state the law with accuracy and be free of error which might mislead the jury. ( Peters v. Madigan, 262 Ill. App. 417.)
The only instruction given for the plaintiff was one which covered the measure of damages. Seventeen instructions were given at the request of the defendant.
The words "guilty" and "not guilty" were repeated twelve times in defendant's instructions, and in such instructions it was stated eleven times that the plaintiff could not recover or words to that effect, and the simple question of the burden of proof was repeated twenty-one times in defendant's instructions. We consider such repetition wholly unnecessary and prejudicial.
No. 7 told the jury that if they believed from the evidence that any witness made statements at any time at variance with his testimony "concerning material matter" then they might determine to what extent this tended to impeach him. In People v. Flynn, 378 Ill. 351, 355, and in People v. Wells, 380 Ill. 347, 357, similar language in instructions was held error because it did not tell the jury what facts were material.
No. 9 stated that if the jury believed from the evidence that the defendant exercised at the time and place in question ordinary care to avoid injury to the plaintiff, then they should find the defendant not guilty. This instruction ignored the question of whether the defendant was guilty of negligence in placing himself in that situation. A similar instruction was held to be error in Edwards v. Hill-Thomas Lime Cement Co., 378 Ill. 180, 187.
No. 10 stated that before the plaintiff could recover he must prove he was actually in the exercise of due care and caution for his own safety. No. 16 stated that the plaintiff must prove that any of his alleged injuries really exist. The words "actually" and "really" were argumentative and put undue emphasis on what the plaintiff had to prove. (See Cleveland, C., C. St. L. R. Co. v. Trimmell, 75 Ill. App. 585, 591.)
No. 11 concluded with the words: "and this rule as to burden of proof is binding in law and must govern the jury in deciding this case. The jury have no right to disregard this rule or to adopt any other in lieu thereof, but in weighing the evidence and in coming to a verdict, the jury should apply said rule and adhere strictly to it." The quoted part of the instruction was argumentative and unduly emphasized the rule of law stated in such instruction. Such quoted language was no more appropriate than it would have been if added to each of the eighteen given instructions.
No. 12 stated that the law did not presume that the defendant was guilty of the charges against him, but on the contrary the law presumed that the defendant was not guilty of the specific charges. While the burden of proof was on the plaintiff, we do not understand that in a case of this nature there is any presumption of law whatever as to the guilt or innocence of the defendant. Such instruction then stated it was the duty of the jury to find the defendant not guilty, unless they found that the plaintiff was guilty "of no want of ordinary care for his own safety or to avoid injury on the occasion. . . ." This was also an erroneous statement of the law. The plaintiff might have been guilty of some "want of ordinary care," but in order to bar his recovery, his negligence or want of ordinary care must have proximately contributed to cause his injury. (See Miller v. Burch, 254 Ill. App. 387.)
No. 14 stated that a city ordinance provided that the operator of a vehicle shall give the right of way to the operator of a vehicle approaching along an intersecting street from the right. The instruction then stated that the operator of a vehicle in approaching an intersection from the right is entitled to the right of way when on his left on an intersecting street another vehicle is approaching whose driver, in the exercise of due care and while considering the distance of each vehicle from the point of intersection of their paths of travel and the speed of approach of each vehicle to said point of intersection, would or should see that unless he yield the right of way the vehicles might or would collide. This instruction was an incorrect statement of the law and was very misleading on the particular facts. There were no stop signs on either street. The defendant, whose car was to the right, testified that he first saw the plaintiff's car at a time when it was entering the intersection and when he, the defendant, was 35 feet east of the intersection, and that he immediately applied his brakes, but they were not effective" and he ran into the plaintiff's car. The instruction in substance and effect placed no duty whatever on the defendant and told the jury that the defendant's car had the right of way regardless of its speed and what distance it was away from the intersection when the plaintiff's car entered the intersection. In Salmon v. Wilson, 227 Ill. App. 286, 288, the court said: "It (the statute) does not contemplate that the right may be invoked when the car from the right is so far from the intersection at the time the car from the left enters upon it, that, with both running within the recognized limits of speed, the latter will reach the line of crossing before the former will reach the intersection. Under the state of facts in this case plaintiff might reasonably have presumed that defendant would not exceed the speed limits fixed by statute, and that he would be able to cross the intersection before defendant's car reached it. Under the claim of right of way defendant certainly had no right to keep up a speed that was prima facie a violation of the law and run down one who was observing the law." The citator shows that such statement in the Salmon case has been approved in seven subsequent decisions of our Appellate Court. In Heidler Hardware Lumber Co. v. Wilson Bennett Mfg. Co., 243 Ill. App. 89, 96, the court said: "It (the statule) does not contemplate that the right may be invoked when the car from the right is so far from the intersection at the time the car from the left enters upon it, that, with both running within the recognized limits of speed, the latter will reach the line of crossing before the former will reach the intersection."
No. 15 concluded with the words, "no juror should consent to a verdict which does not meet the approval of his own judgment and conscience." This instruction tended to encourage a disagreement and should not be given when the case is again tried. ( City of Evanston v. Richards, 224 Ill. 444; People v. LeMorte, 289 Ill. 11.)
Nos. 16 and 17 stated that if the evidence was evenly balanced the plaintiff could not recover. While such instructions were held improper in Hughes v. Medendorp, 294 Ill. App. 424, and Healy v. New York Cent. R. Co., 326 Ill. App. 556, it is our opinion that the clear weight of authority holds such instructions proper. (See Chicago Union Traction Co. v. Mee, 218 Ill. 9; Koshinski v. Illinois Steel Co., 231 Ill. 198; Stivers v. Black Co., 315 Ill. App. 38; Stollery v. Sprague, 301 Ill. App. 209; Johnson v. Gustafson, 233 Ill. App. 216, and Barretta v. Chicago Rys. Co., 214 Ill. App. 455.)
Because of the giving of erroneous instructions the judgment of the circuit court is reversed and the cause is remanded to such court for a new trial.
Reversed and remanded for a new trial.