{ "id": 5790915, "name": "Geneva Handell and Joseph Handell, Plaintiffs-Appellants, v. Chicago Transit Authority, et al., Defendants-Appellees", "name_abbreviation": "Handell v. Chicago Transit Authority", "decision_date": "1961-03-20", "docket_number": "Gen. No. 48,049", "first_page": "1", "last_page": "11", "citations": [ { "type": "official", "cite": "30 Ill. App. 2d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "37 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "378 Ill. 180", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2549002 ], "opinion_index": 0, "case_paths": [ "/ill/378/0180-01" ] }, { "cite": "104 N.E.2d 354", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "345 Ill. App. 560", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2430865 ], "opinion_index": 0, "case_paths": [ "/ill-app/345/0560-01" ] }, { "cite": "20 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "299 Ill. App. 564", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5594074 ], "opinion_index": 0, "case_paths": [ "/ill-app/299/0564-01" ] }, { "cite": "262 Ill. App. 417", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3222927 ], "opinion_index": 0, "case_paths": [ "/ill-app/262/0417-01" ] }, { "cite": "139 Ill. App. 353", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2610276 ], "opinion_index": 0, "case_paths": [ "/ill-app/139/0353-01" ] }, { "cite": "116 Ill. App. 393", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2538664 ], "opinion_index": 0, "case_paths": [ "/ill-app/116/0393-01" ] }, { "cite": "100 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "1 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "284 Ill. App. 493", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3159297 ], "opinion_index": 0, "case_paths": [ "/ill-app/284/0493-01" ] }, { "cite": "161 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill.App.2d 378", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5201496 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/22/0378-01" ] }, { "cite": "153 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.2d 564", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5187001 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/18/0564-01" ] }, { "cite": "129 N.E.2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill.App.2d 21", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5143669, 5144102 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/7/0021-02", "/ill-app-2d/7/0021-01" ] }, { "cite": "69 N.E. 570", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "206 Ill. 615", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5599894 ], "opinion_index": 0, "case_paths": [ "/ill/206/0615-01" ] }, { "cite": "274 Ill. App. 525", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3327325 ], "opinion_index": 0, "case_paths": [ "/ill-app/274/0525-01" ] }, { "cite": "63 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "327 Ill. App. 221", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3420439 ], "opinion_index": 0, "case_paths": [ "/ill-app/327/0221-01" ] }, { "cite": "111 N.E.2d 904", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "350 Ill. App. 59", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5108743 ], "opinion_index": 0, "case_paths": [ "/ill-app/350/0059-01" ] }, { "cite": "121 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.2d 256", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5128131, 5127164 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/3/0256-01", "/ill-app-2d/3/0256-02" ] }, { "cite": "128 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill.App.2d 388", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5139553 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/6/0388-01" ] }, { "cite": "134 N.E.2d 36", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill.App.2d 10", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5156219 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/10/0010-01" ] } ], "analysis": { "cardinality": 714, "char_count": 14806, "ocr_confidence": 0.558, "pagerank": { "raw": 9.628399005788694e-08, "percentile": 0.5271100747572541 }, "sha256": "e4fc91cb728b3693d6c2f71e08b48a63f26d5513798aab0adf8311f37d934505", "simhash": "1:fcaff4ed9985c423", "word_count": 2558 }, "last_updated": "2023-07-14T21:56:22.200012+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "KILEY, P.J. and MURPHY, J. concur." ], "parties": [ "Geneva Handell and Joseph Handell, Plaintiffs-Appellants, v. Chicago Transit Authority, et al., Defendants-Appellees." ], "opinions": [ { "text": "MR. JUSTICE BURMAN\ndelivered the opinion of the court.\nThis is a personal injury suit growing out of injuries sustained by a pedestrian struck by a streetcar in an intersection controlled by four automatic signal traffic lights. The jury returned a verdict in favor of defendant. The trial court overruled plaintiff\u2019s motion for a new trial and entered judgment on the verdict. Plaintiff has appealed.\nPlaintiff\u2019s husband, Joseph Handell, joined her in this suit, claiming damages for loss of services and medical expenses, and is also a party to this appeal, but we hereafter use \u201cplaintiff\u201d to refer solely to Geneva Handell.\nPlaintiff was employed as a checker in the National Tea Store at 79th Street and Damen Avenue, Chicago. On the morning of May 29,1954, she alighted from the front end of a southbound State Street streetcar onto a safety island at 79th Street. She intended to board another streetcar at the northeast corner that would take her west on 79th Street to Damen Avenue. As she was crossing east across State Street, she was struck by defendant\u2019s northbound streetcar. She was severely injured and suffered permanent injuries.\nState Street runs north and south and 79th Street extends east and west. The safety island, which was sixty-four feet long, was forty feet north of the unmarked crosswalk on the north side of - State Street. Prom the north curb of 79th Street to the south end of the safety island was fifty-two feet and five inches. Included in these dimensions was the unmarked crosswalk of twelve feet five inches. Prom curb to curb 79th Street is forty-two feet and seven inches wide. There is a switch track which begins near the south end of the safety island and proceeds south on State Street and then west on 79th Street.\nThere is a direct conflict in the evidence as to whether plaintiff was struck in an unmarked crosswalk or at a place forty or more feet north of the crosswalk; and whether, at the time, the lights controlling traffic at the intersection were red for north and south traffic. The grounds of appeal urged by plaintiff are that the court erred in its ruling in respect to giving and refusing instructions.\nPlaintiff testified as follows: She stayed on the safety island with other passengers until the streetcar she alighted from turned right to go west on 79th Street. She observed the light was green for east and west traffic; and that the streetcar on the northeast corner was then motionless. The first rail of the northbound track was about four or five feet from her. She was in the crosswalk and when she first saw the streetcar that struck her it was right on top of her and she was struck while in the middle of the northbound track. She did not hear any gong or warning of any kind.\nA witness for plaintiff testified as follows: He also got off the State Street streetcar and alighted at the safety island to wait for the next State Street car going south. After the State Street streetcar turned west, plaintiff walked east crossing State Street. \u201cShe was in the south traffic lane in the walkway.\u201d The light was then green for traffic going east and west and was red for north and south traffic. He said the streetcar came through the red light and struck her while in the center of the northbound rails. The streetcar didn\u2019t sound any gong and he did not hear any application of brakes.\nOn cross examination this witness testified that he got off the front end of the streetcar and walked north fifteen or twenty feet on the safety island to wait for the next car so he could get on the rear of the car. After plaintiff was struck he said she fell right at his feet in the southbound tracks.\nDefendant\u2019s motorman testified that he stopped the car at 79th Street and proceeded north with a green light; that when he was halfway across 79th Street a streetcar on the southbound track proceeded around the curb going west on 79th Street; that when he was about twenty-five feet north of the north curb line of 79th Street, \u201cI noticed some people on the island on the north of the intersection, and I saw one lady \u2014 first a couple of them came out, stepped out and then they stepped back again, and another woman went right out across \u2014 with her head down, into my streetcar.\u201d That he sounded his gong from the time he crossed the intersection until plaintiff was struck; that when he first saw plaintiff step out from a group of ten or twelve people on the island she was about fifteen feet away; that he was then going five miles an hour at the time and the car went five feet after the occurrence, and that he came in contact with plaintiff \u201cright alongside the motorman\u201d about five feet back on the left side.\nAnother witness for defendant testified that he was sitting on the left hand side about the fourth seat from the front of the streetcar going north on State Street; that the light was green when the car entered 79th Street; that he saw plaintiff on the island; and that \u201cshe was stepping on the tracks, you know, and just as the streetcar was on the north side of 79th Street, she tried to cross and the streetcar struck her.\u201d\nPlaintiff contends it was reversible error to give defendant\u2019s instruction 15 embodying paragraphs (a) and (d) of section 75 of the Uniform Traffic Act, Ill. Rev. Stat. 1959, Ch. 951/2, \u00a7 172; plaintiff argues that section 75 has no application to an intersection where traffic is controlled by traffic signals and it was prejudicial error for the trial court to tell the jury that section 75 was in full force and effect at the time and place of the accident. Defendant\u2019s instruction 15 states:\n\u201cThe court instructs the jury that there was in full force and effect at the time and place of the accident in question in this case, a certain statute of the State of Illinois which provided, among other things, as follows:\n(a) \u2018Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection, shall yield the right of way to all vehicles upon the roadway.\n(d) \u2018Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.\u2019 \u201d\nIn support of this contention plaintiff quotes Randal v. Deka, 10 Ill.App.2d 10, 134 N.E.2d 36; Stegall v. Carlson, 6 Ill.App.2d 388, 128 N.E.2d 352; Taylor v. Ries, 3 Ill.App.2d 256, 121 N.E.2d 352; Anderson v. Middleton, 350 Ill. App. 59, 111 N.E.2d 904; Breitmeier v. Sutera, 327 Ill. App. 221, 63 N.E.2d 667; Tuttle v. Checker Taxi Co., 274 Ill. App. 525. In Randal the Appellate Court held \u201cbecause sub-paragraph (d) of the statute was omitted therefrom, it did not fully and completely state the law governing the issue before the court.\u201d It cited many of the aforementioned cases and we need not discuss them. In addition in Randal there was a peremptory paragraph which is not the case here. In Tuttle the instruction quoted an ordinance that was repealed. In addition to being peremptory the court there said, \u201cit ignores the rule that both pedestrians and drivers of automobiles on the public streets are required by law to use care to avoid accidents.\u201d In the case at bar sub-paragraph (d) was given to avoid this error.\nWe think Section 75 of the Uniform Traffic Act correctly stated the principal of law which was applicable to defendant\u2019s theory of its case. There was evidence that plaintiff was struck forty or more feet from the crosswalk. In Chicago Union Traction Co. v. Browdy, 206 Ill. 615, 69 N.E. 570, the Supreme Court, after pointing out there was a conflict in the evidence, said:\n\u201cEach party has the right to have the jury instructed upon his theory of the case, if it has a basis in the evidence upon which to rest.\u201d\nEvery party has the right to have the law applicable to his case stated clearly and accurately to the jury. See Sims v. Chicago Transit Authority, 7 Ill.App.2d 21, 129 N.E.2d 23.\n\u201cIt is elementary that every party has the right to have the law applicable to his case stated fairly, clearly, distinctly and conveyed to the jury with substantial accuracy so that it may not be misled to the prejudice of the party (citing cases). He has the right to have the jury instructed upon his theories of recovery or defense (citing cases). Failure to give a party these rights which are tantamount to a fair and just trial, whenever the case is close upon its facts or the evidence conflicting, and the failure is material, requires that the verdict be set aside. . . .\u201d\nPlaintiff argues that the second part of defendant\u2019s instruction 15 based on Section 75 of the Uniform Traffic Act is not applicable to streetcars. She claims that the express omission of \u201cstreetcar\u201d from the mention of \u201cvehicle\u201d in this section and the express inclusion of \u201cmotorman\u201d in Section 32, Ill. Rev. Stat. 1959, Ch. 951/2, \u00a7 129, indicates that Section 75 was not intended to include streetcars. She contends that since the instruction did not mention \u201cmotorman\u201d the jury \u201cwould conclude\u201d it did not apply to the- motorman in this case. It seems to us more likely that the jury would construe the requirement for a driver of a vehicle to apply to the operator of a streetcar. We see no prejudicial error.\nPlaintiff next contends that the trial court erred in refusing to give plaintiff\u2019s instruction 1. That instruction told the jury that Section 32 of the Uniform Traffic Act, Ill. Rev. Stat. 1959, Ch. 951/2, \u00a7 129, was in effect, pertaining to an intersection where there are traffic lights. After quoting the statute, that instruction included a peremptory paragraph reading as follows:\n\u201cIf you believe from a preponderance of the evidence that the plaintiff, Geneva Handell, was a pedestrian crossing State Street at 79th Street and was at the time in question and immediately prior thereto in the exercise of ordinary care and caution for her own safety, and if you further believe from a preponderance of the evidence that the defendant violated said statute and that it was negligent in so doing and that such negligence on the part of the defendant proximately caused the injury in question through no fault on the part of the plaintiff, Geneva Handell, then you may find the defendant guilty.\u201d\nThe trial court gave this instruction as plaintiff\u2019s instruction 11, but modified it by eliminating the last paragraph. We have examined the record and find no objection by plaintiff in the conference on instructions to the giving of this instruction in the modified form. We must therefor presume that plaintiff acquiesced in the modification. Madison v. Wigal, 18 Ill.App.2d 564, 153 N.E.2d 90; Goodman v. Motor Products Corporation, 22 Ill.App.2d 378, 161 N.E.2d 31. Both instructions, defendant\u2019s 15 and plaintiff\u2019s 11, quoting the sections of the statutes applicable to the right of way theories of the case, were given by the court to the jury without peremptory paragraphs. We think this was correct.\nLastly, plaintiff contends that the court committed reversible error in refusing to give plaintiff\u2019s instruction 9, which reads:\n\u201cThe jury is instructed that in approaching a street intersection where automatic traffic lights are operating, a motorman driving a streetcar is under a duty to use due care to keep his streetcar under control so that he can comply with the traffic signals, and if pedestrians who began crossing on the intersecting street when the light was green for them have not reached the other side, such motorman has a duty to wait for such pedestrians to give them time in which to reach the other side.\u201d\nIn support of this contention plaintiff relies on Mahan v. Richardson, 284 Ill. App. 493, 1 N.E.2d 100. That case did not involve a question of given or refused instructions. The sole question there was whether the trial court erred in directing a verdict for defendant. That case held that motorists and operators of streetcars have a duty to allow pedestrians on crosswalks of an intersection when a traffic light changes against them to get to a place of safety before proceeding in accordance with traffic signal. And if he is momentarily paralyzed with fear and takes a step or two in the wrong direction it cannot be said that as a matter of law he acted negligently. Also cited by plaintiff is the case of Arney v. Bogstad, 100 S.E.2d 749 (Va.), where an instruction similar to the instruction in question was held to be proper. In that case, as in Mahan, there was no dispute that plaintiff was in the crosswalk as distinguished from the case at bar. If the jury believed, on the contrary, that plaintiff was some distance from the crosswalk then the provisions of the statute apply under which a vehicle operator must use due care to avoid striking pedestrians and the pedestrian is under a duty to yield the right of way.\nPlaintiff\u2019s instruction 9 told the jury that plaintiff was in the crosswalk and consequently would have misled the jury. It ignored the evidence and the law pertaining to pedestrians crossing at a point other than a crosswalk.\nAn instruction \u201cis erroneous which singles, out and gives undue permanence to certain facts while ignoring other facts proven of equal importance in proper determination of the case.\u201d Scott v. Snyder, 116 Ill. App. 393. See also Tanner v. Clapp, 139 Ill. App. 353; Peters v. Madigan, 262 Ill. App. 417.\nThe trial court exercises a wide discretion as to the form in which instructions shall be given. Isley v. McClandish, 299 Ill. App. 564, 20 N.E.2d 890. It is, of course, necessary that the instruction should be accurate, especially where the evidence is conflicting, Rogers v. Mason, 345 Ill. App. 560, 104 N.E.2d 354, and the case is close on the facts. Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, 37 N.E.2d 801. A court of review assumes as it must, that in rendering a general verdict upon two theories which are fully presented and well argued by able counsel, as in this case, the jurors did discriminate intelligently basing their verdict on the evidence. We are of the opinion that by the giving of plaintiff\u2019s instruction 11 and defendant\u2019s instruction 15 the jury was not misled as to the issues and was fairly instructed.\nFor the reasons stated the judgment of the Circuit Court is affirmed.\nAffirmed.\nKILEY, P.J. and MURPHY, J. concur.", "type": "majority", "author": "MR. JUSTICE BURMAN" } ], "attorneys": [ "Hubbard, Hubbard & Dorgan, of Chicago, for appellants.", "\"William J. Lynch and William S. Allen, and Chester A. Wynne, and James E. Hastings, all of Chicago, for appellees." ], "corrections": "", "head_matter": "Geneva Handell and Joseph Handell, Plaintiffs-Appellants, v. Chicago Transit Authority, et al., Defendants-Appellees.\nGen. No. 48,049.\nFirst District, First Division.\nMarch 20, 1961.\nHubbard, Hubbard & Dorgan, of Chicago, for appellants.\n\"William J. Lynch and William S. Allen, and Chester A. Wynne, and James E. Hastings, all of Chicago, for appellees." }, "file_name": "0001-01", "first_page_order": 13, "last_page_order": 23 }