{ "id": 5175391, "name": "Geno P. Arboit, Plaintiff-Appellant, v. Gateway Transportation Co., Defendant-Appellee", "name_abbreviation": "Arboit v. Gateway Transportation Co.", "decision_date": "1957-12-18", "docket_number": "Gen. No. 11,067", "first_page": "500", "last_page": "512", "citations": [ { "type": "official", "cite": "15 Ill. App. 2d 500" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "13 Ill. App. 85", "category": "reporters:state", "reporter": "Ill. App.", "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "13 Ill.App.2d 76", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5169745 ], "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0076-01" ] }, { "cite": "14 Ill.App.2d 564", "category": "reporters:state", "reporter": "Ill. App. 2d", "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "6 Ill.2d 594", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708626 ], "pin_cites": [ { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0594-01" ] }, { "cite": "337 Ill. App. 327", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5016862 ], "opinion_index": 0, "case_paths": [ "/ill-app/337/0327-01" ] }, { "cite": "333 Ill. App. 418", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5030110 ], "pin_cites": [ { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-app/333/0418-01" ] }, { "cite": "14 Ill.App.2d 548", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5173409 ], "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0548-01" ] }, { "cite": "13 Ill.App.2d 144", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5171439 ], "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0144-01" ] }, { "cite": "14 Ill.App.2d 562", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5174017 ], "weight": 2, "pin_cites": [ { "page": "564" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0562-01" ] } ], "analysis": { "cardinality": 842, "char_count": 19376, "ocr_confidence": 0.517, "pagerank": { "raw": 4.978905578265762e-07, "percentile": 0.9355645831088995 }, "sha256": "21fb1f50587889eacbc2c346f4a7aefe3737357a73653e8b81698941677c8b43", "simhash": "1:3bd730b3624887d5", "word_count": 3273 }, "last_updated": "2023-07-14T20:59:23.995826+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DOVE, P. J. and SPIVEY, J., concur." ], "parties": [ "Geno P. Arboit, Plaintiff-Appellant, v. Gateway Transportation Co., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McNEAL\ndelivered the opinion of the conrt.\nAbout 12:45 A. M. on March 12, 1953 the plaintiff drove his 1951 Buick automobile in a southerly direction on U. S. Route 51 in the city of Oglesby, Illinois, and collided with the rear portion of defendant's trailer. At the time of the collision the trailer was attached to a tractor driven by Joseph Meador. Plaintiff alleged that he was in the exercise of dne care; that defendant owned the semi-truck trailer combination and by its agent and employee, Meador, negligently drove the unit at a speed less than was reasonable and proper, at such a slow speed as to impede or block the normal and reasonable movement of traffic, without proper taillights, or next to the center line of the roadway; and that as a proximate result of defendant\u2019s negligence, plaintiff sustained personal injuries, for which he demanded judgment in the sum of $103,000. Defendant answered and denied these allegations. A jury returned a verdict finding defendant not guilty and the court entered judgment in favor of defendant on the verdict. The court denied plaintiff\u2019s post trial motion for judgment notwithstanding the verdict or for a new trial, and plaintiff appealed. Plaintiff\u2019s theory on appeal is that the court erred in giving certain instructions for defendant, and that the verdict was against the manifest weight of the evidence.\nU. S. Route 51 crosses the Illinois River just south of LaSalle, intersects State Route 71 at the foot of Oglesby Hill, and proceeds southerly as a two-lane concrete highway up hill at a grade of three per cent for 1,500 to 2,000 feet. The highway levels off for 200 to 250 feet, enters the city limits of Oglesby, and resumes-the climb at a six per cent grade for approximately 1,000 feet to its intersection with West Mormon Street-The pavement widens to four lanes about 34 feet north of West Mormon Street and continues south from that intersection at a four and a half per cent grade about 106 feet to the East Mormon Street intersection-At the time of the collision the highway was illuminated by sodium vapor street lights. One light was at the south line of East Mormon Street and to the north there were two lights at intervals of about 150 feet, and three more lights at intervals of about 300 feet-\nPlaintiff was alone in the car, returning to his home in Oglesby from LaSalle where he had attended a club dinner and another social function. He testified that he was served a few drinks during the evening. According to his last recollection prior to the accident plaintiff was driving his ear 25 to 28 miles an hour, about a foot to the right of the center line, at a point where the two lanes widened into a four-lane highway. His lights were on dim and although he could see about 100 feet ahead, he never saw the truck at any time. The front of his car was demolished and plaintiff sustained painful and permanent injuries.\nJoseph Meador testified that he was employed by defendant at the time of the trial, but on the day of the collision he was employed by Eichard Stine, owner of the tractor he was driving. On March 11 Stine had leased the tractor to the defendant company which possessed the authority of the Interstate Commerce Commission for the operation of the unit involved in the collision. On that day Meador reported to the dispatcher for the defendant company at its terminal in Milwaukee. The dispatcher gave Meador written instructions with reference to the destination of defendant\u2019s loaded trailer. Meador hooked the tractor to the trailer and left Milwaukee about 6:30 P. M., enroute to El Paso, Illinois. The tractor-trailer unit was 40 feet in length and, including cargo, weighed about 32,000 pounds. On the rear of the trailer were ten red lights which were inspected on departure and at the State Weighing Station near the junction of Eoutes 30 and 51, about 30 miles north of Oglesby. The unit was traveling 15 to 18 miles an hour, about a foot west of the center of the two-lane portion of the highway near the West Morman Street intersection, when there was a terrific thump at the back end. Meador didn\u2019t know what had happened until he pulled to the right and then he saw plaintiff\u2019s car in the middle of the road to his rear. He parked the unit on the west lane of the highway south of East Mormon Street. His lights were on at the time of the impact, and after the collision all were burning except three cluster lights and a combination taillight and stop light which were broken out or knocked off.\nHarold Duncan testified that at the time of the trial he was employed by the defendant company, but at the time of the collision he too was employed by Stine to drive a tractor pulling a Grateway trailer from Milwaukee to El Paso, Hlinois; that he followed the unit driven by Meador at a distance of 500 to 1,000 feet all the way from Milwaukee to a point 3 or 4 miles north of LaSalle where he passed Meador; that the ten lights on the back of the trailer pulled by Meador were always operating and visible to Duncan; and that he also stopped at the weighing station at the junction of routes 30 and 51, and was there when Meador checked his lights and equipment.\nPlaintiff\u2019s witness, Burkett Moliske, testified that he was Light Superintendent for the city of Oglesby; that the sodium vapor lights along the highway had the peculiar characteristic of not reflecting true colors; that under such lights a red taillight appeared to be black or dark purple; and that the city of Oglesby is substituting a different kind of light for those in use at the time of the accident.\nA police officer for the city of Oglesby and a tavern operator testified for the plaintiff that they were at the scene shortly after the collision and that plaintiff\u2019s car was facing south on the inner southbound lane near the extended north curb line of East Mormon Street; and that they observed no lights on the back of defendant\u2019s trailer at that time. These witnesses and the ambulance driver corroborated plaintiff\u2019s testimony that it was a foggy, misty night. Both of the truck drivers testified that it was clear and the pavement was dry all the way from Milwaukee to Oglesby. John Thompson, who operated the wrecker which removed plaintiff\u2019s car, testified that the wrecked car was on the inner southbound lane about in line with the southwest corner of the West Mormon Street intersection; and that the truck was parked on the right outer lane at the East Mormon Street intersection.\nIn his brief plaintiff\u2019s primary contention is that the collision occurred near the East Mormon Street intersection or about 140 feet south of the point where the two-laned pavement widened to four lanes. Plaintiff alleged that defendant drove the unit in a lane of of traffic next to and immediately adjoining the center line of said roadway, in violation of Sec. 54, Par. 151, Sub-par. 5 (b), Ch. 95%, Ill. Rev. Stat. 1953. This section requires that a vehicle proceeding at less than normal speed be driven in the right-hand lane available for traffic or as close as practicable to the right-hand curb or edge of the roadway. However, this statute did not become effective until July after the accident happened and was not applicable to this case. Although not shown by the abstract, defendant concedes that plaintiff\u2019s allegation was amended during the trial to place this same allegation on a common law basis.\nThe testimony in this case was highly contradictory on many questions, including such matters as the location of the vehicles after the collision and the condition of the weather. Where the testimony is conflicting it is for the jury to determine the credibility of the witnesses and the weight to be given their testimony. Likewise it was for the jury to determine from all the facts and circumstances in evidence and npon reasonable inferences therefrom the speed of the vehicles and where they collided, whether plaintiff ran into the rear of defendant\u2019s trailer on the two or four-laned portion of the highway, whether plaintiff was in the exercise of due care or guilty of negligence which proximately contributed to bring about the collision and his injuries, and whether or not the driver of the tractor-trailer unit was defendant\u2019s agent or servant at the time of the collision and was guilty of any negligence which proximately caused the collision. On either of these questions of fact we think there was competent evidence to support the jury\u2019s verdict adverse to plaintiff\u2019s contentions and in favor of the defendant. The trial court denied plaintiff\u2019s post trial motion for a new trial and permitted the verdict to stand. The ruling of a trial court on a motion for a new trial will not be disturbed on appeal unless there was a clear abuse of discretion (Thomas v. Weber, 14 Ill.App.2d 562, 564).\nIt is not the province of this court to substitute its judgment for that of a jury unless its verdict is against the manifest weight of the evidence. To be against the manifest weight of the evidence requires that an opposite conclusion be clearly evident. Niman v. Pecatonica Livestock Exchange, 13 Ill.App.2d 144, 151; Ritter v. Hatteberg, 14 Ill.App.2d 548, 555. We cannot say that the verdict is against the manifest weight of the evidence in this case.\nThe court gave thirteen instructions offered by plaintiff and eighteen of twenty-five instructions tendered by defendant. On appeal plaintiff contends that the court erred in giving defendant\u2019s intructions No. 1, No. 4 through No. 14, and the last or eighteenth instruction given for defendant, referred to herein as No. 18. Plaintiff argues that these instructions were peremptory and unduly emphasized the question of contributory negligence. Defendant\u2019s position is that these instructions have been approved by courts of review, pertained to different subject matters, and were not repetitious; that plaintiff specifically or by inference waived objection to a number of the instructions; and that the objections now urged were not set forth in plaintiff\u2019s post trial motion and are made for the first time here.\nAt an extended conference on instructions shown by an additional abstract of 34 pages of the record, the court referred to defendant\u2019s instructions and said: \u201cIs there any objection to Instruction No. 1?\u201d Mr. Berry, one of plaintiff\u2019s attorneys, replied: \u201cI don\u2019t think there is anything seriously wrong with it.\u201d The court read No. 10 and said: \u201cAny objection to that?\u201d Mr. Berry replied: \u201cI don\u2019t believe so.\u201d The court read No. 13 and Mr. Berry said: \u201cWell, I don\u2019t believe I have much objection to that.\u201d Having stated that he had no objection to defendant\u2019s instructions 1, 10 and 13, plaintiff is precluded from raising any objection to those instructions, either in the trial court or on appeal. Johnson v. Luhman, 333 Ill. App. 418, 425; Thomas v. Weber, 14 Ill.App.2d 562, 565.\nDefendant\u2019s No. 4 instructed in substance that plaintiff could not recover at all in this case unless the jury believed that he had proved certain propositions: (1) that plaintiff was exercising ordinary care, (2) that defendant was guilty of negligence as charged, and (3) that such negligence was the proximate cause of plaintiff\u2019s alleged injuries. The court read the instruction and Mr. Berry suggested that the words \u201cat all\u201d should be deleted, and that the phrase \u201cof one or more acts\u201d be inserted in the second proposition. The court accepted the latter suggestion and gave the instruction. The court asked: \u201cWhat is the matter with 5?\u201d Mr. Berry replied: \u201cThis defendant\u2019s instruction 5, the only objection I have, it is practically a duplication . . . of one of the previous ones about preponderance of the evidence . . . .\u201d Mr. Berry read the sixth instruction, the court read the instruction, and counsel said: \u201cWell, that is practically a duplicate again of the other two on burden of proof.\u201d\nInstruction No. 7 reads as follows:\n\u201cThe law places upon all persons the duty of exercising reasonable care to avoid injury, and even though the jury should believe, from the evidence, that the defendant was negligent and the plaintiff, Geno P. Arboit, was injured thereby, if the evidence also shows that the injury could have been avoided by the exercise of ordinary care by the plaintiff, and that the plaintiff did not exercise such care, you should find the defendant not guilty.\u201d After the court read the instruction, Mr. Berry objected that \u201cAn instruction like that is not proper where there is evidence of poor visibility and weather conditions.\u201d The court commented: \u201cWell, of course, the defendant is entitled to instructions upon his theory of the case.\u201d Mr. Berry said: \u201cYes, that is true. Further, we don\u2019t think that instruction properly states any proper rule of law; it is ambiguous. ... I object to that wording \u2014 \u2018would have been avoided by the exercise of ordinary care.\u2019 I don\u2019t think that is a proper statement of the rule in that form.\u201d Two of defendant\u2019s witnesses had testified that the weather was clear and the pavement dry. It was for the jury to say what the evidence showed as to visibility and weather conditions. Each party had a right to have the jury instructed upon his theory of the case. In support of his theory that there was evidence of poor visibility, plaintiff\u2019s instruction 9 told the jury: \u201cAILthat was required of him was the exercise ... of ordinary care in view of the facts and circumstances shown by the proof; and what ordinary care is depends upon the circumstances of each particular case.\u201d\nAfter the court read instruction 8, Mr. Berry commented : \u201cIt is a duplicate of several others that he has given.\u201d Instruction 9 recited the language of the statute pertaining to speed greater than reasonable and proper and instructed that if the jury believed from the evidence that plaintiff was driving at a greater speed than reasonable and proper and thereby contributed to the accident, then the jury should find defendant not guilty. The court said he was more inclined to give this instruction than a previous one which he refused. Mr. Berry said: \u201cWell, yes, I think, however, the same objection applies to it.\u201d\nThe court read defendant\u2019s instruction 11 pertaining to proximate cause. Mr. Berry said: \u201cI object to that portion, to the words \u2018immediate or the real cause.\u2019 It should just read \u2018the proximate cause of the accident in question\u2019, both in the middle and in the next to the last line. \u2018Immediate or moving\u2019 cause in the last line should be stricken out, I think, so it reads just \u2018the proximate cause of the accident in question.\u2019 \u2018Immediate cause\u2019 \u2014 I don\u2019t think there is any such term known in law as that as the proper test.\u201d The court replied: \u201cI am striking out \u2018immediate or the real\u2019 cause and \u2018immediate or moving\u2019 cause of the accident.\nThe court read instruction No. 12 as follows:\n\u201cYou are instructed that unless you believe from the evidence that some agent, servant or employee of the defendant, Gateway Transportation Company, was guilty of some negligent act as charged in the complaint which contributed to the accident, the plaintiff, Geno P. Arboit, cannot recover against the defendant . . . .\u201d The court said: \u201cI don\u2019t see anything wrong with that.\u201d Mr. Berry responded: \u201cI don\u2019t either. Here is the only thing I see wrong .... It might be a negligent omission as well as a negligent act.\u201d Plaintiff is in no position to complain of this omission. His instruction No. 11 is subject to the same defect, if any, in referring only to the negligent \u201cacts of said employee.\u201d Further the omission of negligent omissions from instruction 12 could not have confused the jurors because defendant\u2019s No. 17 told them to consider the instructions as a series, plaintiff\u2019s No. 1 set forth in detail the eight negligent acts or omissions alleged in the complaint, and plaintiff\u2019s No. 10 directed a verdict for plaintiff if he proved that defendant was guilty of one or more of the negligent acts or omissions charged in plaintiff\u2019s complaint.\nPlaintiff now contends that defendant\u2019s instructions numbered 4 through 9, and 11 and 12 were peremptory in form or repetitious with reference to contributory negligence. We are fully in accord with the views expressed by this court in Baker v. Thompson, 337 Ill. App. 327, and by other Appellate Courts, condemning the practice of giving an excessive number of peremptory instructions, and in a proper case we would not hesitate to reverse a judgment rendered on a verdict procured by such practice. In the instant case, however, the record fails to show that the trial court was ever apprised of plaintiff\u2019s contentions here that such instructions were peremptory in form or repetitious with respect to contributory negligence. Such contentions were not called to the trial court\u2019s attention by plaintiff\u2019s objection that an instruction duplicates several others, or duplicates others on burden of proof or preponderance of the evidence. By making certain objections and aiding the court in rewording several of these instructions, we believe that plaintiff\u2019s attorney implied that he had no other objections and encouraged the court to give these instructions subject only to the objections made. Except for the objections made at the conference, it is our opinion that plaintiff\u2019s attorney consented to these instructions by implication and that he cannot now complain of alleged errors which he induced the court to make (City of Waukegan v. Stanczak, 6 Ill.2d 594, 608; Thomas v. Weber, 14 Ill.App.2d 564, 565), or which he raises for the first time on appeal (Sunga v. Lee, 13 Ill.App.2d 76, 79). As to objections made to these instructions at the conference, we think that the trial court\u2019s rulings thereon were correct.\nWhen the court read defendant\u2019s instructions No. 14 and No. 18 at the conference, plaintiff\u2019s attorney made no comment or objection. In Biggerstaff v. New York, C. & St. L. R. Co., 13 Ill. App. 85, 91, the court said: \u201cWe are convinced that it is the duty of an attorney, who feels that there is no evidence to support a requested interrogatory or that for any reason such interrogatory should not be given or should be modified, to make his position known before the interrogatory is submitted to the jury. . . . Counsel cannot sit idly by and permit interrogatories, even though they are erroneous, to be submitted to the jury and then be given the advantage of properly predicating error thereon by urging it in a motion for a new trial.\u201d In our opinion the views of the Appellate Court, First District, pertaining to the preservation of errors in connection with the submission of interrogatories under section 65 of the Civil Practice Act [Ill. Rev. Stats. 1957, ch. 110, \u00a7 65] are equally applicable to the settlement of instructions required by section 67 (3) of said Act. We cannot consider plaintiff\u2019s objections to instructions 14 and 18.\nWe find no reversible error in the rulings of the trial court. The judgment of the Circuit Court of LaSalle county is affirmed.\nJudgment affirmed.\nDOVE, P. J. and SPIVEY, J., concur.", "type": "majority", "author": "JUSTICE McNEAL" } ], "attorneys": [ "Berry & O\u2019Conor, of Ottawa, for plaintiff-appellant.", "Zwanzig, Thompson & Lannti, of Ottawa, for defendant-appellee." ], "corrections": "", "head_matter": "Geno P. Arboit, Plaintiff-Appellant, v. Gateway Transportation Co., Defendant-Appellee.\nGen. No. 11,067.\nSecond District, First Division.\nDecember 18, 1957.\nEeleased for publication January 4, 1958.\nBerry & O\u2019Conor, of Ottawa, for plaintiff-appellant.\nZwanzig, Thompson & Lannti, of Ottawa, for defendant-appellee." }, "file_name": "0500-01", "first_page_order": 514, "last_page_order": 526 }