{ "id": 5126631, "name": "Lawrence Smith, Appellant, v. Arvid Johnson, Appellee", "name_abbreviation": "Smith v. Johnson", "decision_date": "1954-05-05", "docket_number": "Gen. No. 46,281", "first_page": "315", "last_page": "321", "citations": [ { "type": "official", "cite": "2 Ill. App. 2d 315" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "407 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2638945 ], "opinion_index": 0, "case_paths": [ "/ill/407/0321-01" ] }, { "cite": "328 Ill. App. 645", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5653143 ], "opinion_index": 0, "case_paths": [ "/ill-app/328/0645-01" ] }, { "cite": "392 Ill. 471", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2516190 ], "opinion_index": 0, "case_paths": [ "/ill/392/0471-01" ] }, { "cite": "342 Ill. App. 451", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5061379, 5065884 ], "opinion_index": 0, "case_paths": [ "/ill-app/342/0451-01", "/ill-app/342/0451-02" ] }, { "cite": "324 Ill. App. 21", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4962897 ], "opinion_index": 0, "case_paths": [ "/ill-app/324/0021-01" ] } ], "analysis": { "cardinality": 485, "char_count": 8066, "ocr_confidence": 0.526, "pagerank": { "raw": 3.581697614844059e-07, "percentile": 0.886800736259141 }, "sha256": "b69e209a32cf21cd5e0a6663672d5e6cc91b285025e93497b15eeabeb8ea5cb6", "simhash": "1:fbce14a513a69df8", "word_count": 1294 }, "last_updated": "2023-07-14T21:56:23.997308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lawrence Smith, Appellant, v. Arvid Johnson, Appellee." ], "opinions": [ { "text": "Mr. Justice Lews\ndelivered the opinion of the court.\nPlaintiff, a blind man, brought an action to recover damages for personal injuries sustained by him as a result of being struck by defendant\u2019s automobile while crossing a public highway. There was a jury trial, verdict, and judgment in favor of defendant. Plaintiff appeals.\nThe accident occurred about 6:30 p. m. on December 21, 1949, on Irving Park Boulevard, an east .and west four-lane highway in the City of Chicago, near Octavia Street. Octavia Street runs north and south and intersects Irving Park Boulevard at right angles. At this intersection Forest Preserve Drive, which extends in a southwesterly and northeasterly direction, also crosses Irving Park Boulevard near Octavia Street. At the time plaintiff was injured visibility was poor due to mist and fog.\nOn the evening of the occurrence plaintiff, forty-seven years of age, was walking in a southerly direction from the northeast corner of Forest Preserve Drive arid Irving Park Boulevard toward the south side of Irving Park Boulevard when he was hit by defendant\u2019s automobile. There is a sharp conflict in the testimony as to the point of the impact. Plaintiff\u2019s testimony shows that when crossing Irving Park Boulevard he was carrying a shopping bag containing four bottles of beer in his left hand and a cane in his right hand and that he was struck on his right side by defendant\u2019s eastbound automobile when plaintiff\u2019s \u201cleft foot hit the southeast curb of Octavia and Irving Park \u2022 Boulevard.\u201d\nAccording to defendant\u2019s testimony the right front of his automobil\u00e9 came in contact with the plaintiff when defendant\u2019s automobile was traveling about three feet south of the center line of Irving Park Boulevard and about 150 feet east of the crosswalk on Octavia Street. Defendant denied seeing plaintiff\u2019s cane before the impact.\nAfter the occurrence plaintiff was lying about three feet north of the south curb of Irving Park Boulevard and nearby, about two feet north of the south curb, broken glass from bottles which plaintiff carried was found. The parties stipulated that plaintiff\u2019s cane was found at the scene of the accident.\nAs defendant neared Forest Preserve Drive he \u201cslowed down\u201d and then proceeded east on Irving Park Boulevard at fifteen or twenty miles an hour. Defendant stated that there were no obstructions for \u201cat least a block ahead\u201d; that he first saw plaintiff when he was about ten feet in front of defendant\u2019s automobile; and that his automobile stopped in about five feet after striking the plaintiff.\nOn the day of the accident the defendant signed a statement on a form furnished by the Chicago Police Department, Accident Prevention Division, marked \u201cPlaintiff\u2019s Exhibit 4,\u201d which contained the following question and answer: (Q) \u201cWith reference to this accident how far did your vehicle go after the accident before coming to a complete stop?\u201d (A) \u201cAbout sixty feet to south curb.\u201d At the trial plaintiff\u2019s counsel called the defendant as an adverse witness under section 60 of the Civil Practice Act [111. Bev. Stats. 1953, ch. 110, \u00a7 184; Jones HI. Stats. Ann. 104.060] and, referring to the police report, plaintiff\u2019s Exhibit 4, propounded the following question to defendant: \u201cWas this question asked of you and did you make this answer : \u2018With reference to this accident how far did your vehicle go after the accident before coming to a complete stop?\u2019 and did you make this answer: \u2018About sixty feet to the south curb\u2019 ?\u201d Over counsel for defendant\u2019s repeated objection the defendant answered: \u201cI might have, yes.\u201d Defendant\u2019s counsel insisted that the police report be introduced on the ground that it was the best evidence. Substantially the same question asked defendant was propounded to plaintiff\u2019s witness, Patrick Breen, a police officer who took the statement (plaintiff\u2019s Exhibit 4) from the defendant. Defendant\u2019s counsel again objected \u201con the ground that unless you have the entire document [plaintiff\u2019s Exhibit 4] it would be confusing.\u201d\nPlaintiff contends that defendant\u2019s counsel\u2019s challenges to plaintiff, in the presence of the jury, to introduce the police report into evidence was prejudicial. We agree. The police report was clearly inadmissible and defendant\u2019s insistence that it be received in evidence has been repeatedly condemned. See Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21 and Ruppaner v. Wane, 342 Ill. App. 451.\nPlaintiff insists that defendant\u2019s cross-examination of police officers Doherty and Breen was improper. The evidence shows that these officers reached the scene of the accident about three hours after the occurrence. Officer Doherty was asked the following question: \u201cYou found in your investigation that the accident did not happen at an intersection, did you not?\u201d And Officer Breen was asked if he made an investigation as to the condition of the weather at the time of the accident. Both of these questions call for conclusions based on hearsay.\nDoctor Urban Comes, called by plaintiff, testified on direct examination that plaintiff complained frequently of headaches. On cross-examination of this witness defendant\u2019s counsel exhibited to him some \u201cnurses\u2019 notes,\u201d none of which were in Dr. Comes\u2019 handwriting. He was then asked, \u201cSee if there is any complaint of any headaches made by plaintiff.\u201d This question was clearly objectionable because the \u201cnurses\u2019 notes\u201d speak for themselves and did not tend to discredit the credibility of Dr. Comes. For the reasons heretofore stated, we are impelled to reverse the judgment and remand the cause.\nFor the purpose of guiding, the trial court in the event the cause is retried we shall dispose of the other questions presented.\nCriticism is levelled at certain given instructions, Nos. 13, 15 and 16, tendered by the defendant.\nDefendant\u2019s instruction number 13 was approved in substantially the same form in Turzinski v. Pam, 392 Ill. 471, and we think it correctly states the law governing the present case.\nDefendant\u2019s instruction number 16 states that if the jury believe the plaintiff was injured as the result of an \u201caccident\u201d which occurred without the fault either of the plaintiff or of the defendant. . . . Plaintiff contends that there was no evidence that the occurrence was the result of an accident. We agree. Moreover, defendant\u2019s answer avers that plaintiff was injured as a result of his carelessness and negligence. The giving of this instruction should be discouraged. It is only when there is evidence tending to show that plaintiff was injured through accident alone, not coupled with negligence, that the giving of such instruction is permissible. (Williams v. Matlin, 328 Ill. App. 645.)\nDefendant\u2019s instruction 15 states: \u201cIf you believe from the evidence that plaintiff and defendant were both guilty of negligence which proximately contributed to the injury or damage complained of, you are instructed that you have no right to compare the negligence of plaintiff with that of the defendant, and find a verdict according .to which side you think guilty of the greater degree of negligence. . . .\u201d\nPlaintiff says that it is difficult to perceive under what circumstances a blind person could be guilty of contributory negligence under the provisions of chapter 95%, section 172a, Illinois Revised Statutes 1949 [Jones Ill. Stats. Ann. 85.204(1)].\nSince plaintiff\u2019s instructions numbers 2 and 3 recognize that the plaintiff is charged with the duty of exercising care for his own safety, he cannot complain of an erroneous instruction where his own instructions are subject to the same criticism. (Hockersmith v. Cox, 407 Ill. 321.)\nFor the reasons given the judgment is reversed and the cause remanded for a new trial.\nJudgment reversed avid cause remanded for a new trial.\nFeihbebg, P. J. and Kilby, J., concur.", "type": "majority", "author": "Mr. Justice Lews" } ], "attorneys": [ "Joseph Reiee, of CMcago, for appellant.", "Wyatt Jacobs, of Chicago, for appellee; Joseph B. Lederleitner, of Chicago, of counsel." ], "corrections": "", "head_matter": "Lawrence Smith, Appellant, v. Arvid Johnson, Appellee.\nGen. No. 46,281.\nOpinion filed May 5, 1954.\nReleased for publication June 15, 1954.\nJoseph Reiee, of CMcago, for appellant.\nWyatt Jacobs, of Chicago, for appellee; Joseph B. Lederleitner, of Chicago, of counsel." }, "file_name": "0315-01", "first_page_order": 329, "last_page_order": 335 }