{ "id": 5279428, "name": "John Wrighthouse, Plaintiff-Appellant, v. William Howard Brown, Defendant-Appellee", "name_abbreviation": "Wrighthouse v. Brown", "decision_date": "1964-10-20", "docket_number": "Gen. No. 10,564", "first_page": "191", "last_page": "201", "citations": [ { "type": "official", "cite": "52 Ill. App. 2d 191" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "146 NE2d 582", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill App2d 500", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5175391 ], "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0500-01" ] }, { "cite": "145 NE2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill App2d 562", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5174017 ], "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0562-01" ] }, { "cite": "190 NE2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "pin_cites": [ { "page": "433, 434" } ], "opinion_index": 0 }, { "cite": "145 NE2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill App2d 25", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5176035 ], "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0025-01" ] }, { "cite": "170 NE2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738128 ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0301-01" ] }, { "cite": "79 NE2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "334 Ill App 339", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2427065 ], "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/ill-app/334/0339-01" ] }, { "cite": "141 NE2d 72", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill App2d 85", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5169181 ], "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0085-01" ] }, { "cite": "129 NE2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill App2d 21", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5143669, 5144102 ], "pin_cites": [ { "page": "29, 30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/7/0021-02", "/ill-app-2d/7/0021-01" ] } ], "analysis": { "cardinality": 635, "char_count": 12695, "ocr_confidence": 0.59, "pagerank": { "raw": 3.1879893543891444e-07, "percentile": 0.864960659868587 }, "sha256": "0328c76ae1a1b0d2287475a7a173c49c4889c40cb47d7de8dbbffa2a488d8deb", "simhash": "1:5982ef68551e7567", "word_count": 2179 }, "last_updated": "2023-07-14T20:22:06.292848+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CROW, P. J. and SMITH, J., concur." ], "parties": [ "John Wrighthouse, Plaintiff-Appellant, v. William Howard Brown, Defendant-Appellee." ], "opinions": [ { "text": "SPIVEY, J.\nThe plaintiff, John Wrighthouse, seeks to reverse a judgment entered on a jury verdict in favor of the defendant, William Howard Brown, in an action for personal injuries tried in the Circuit Court of Macon County. Defendant cross-appeals and asks a reversal of the judgment entered against him on his counterclaim for property damage.\nOn April 21, 1962, the defendant was driving a farm tractor on a blacktop road in Macon County. He was pulling a plow behind the tractor. It was dusk or dark, and the defendant was using lights on his tractor. The defendant had a white light on the back of the tractor but had no light or reflector on the plow. The plow was 7% to 8 feet wide and extended back from the tractor about six feet. He was traveling about 20 miles per hour in a southerly direction.\nAt the place where the collision occurred the road was two lane, level, straight and between 18 to 20 feet wide. On the west side of the road there was a shoulder of sod and dirt about 9 feet wide.\nAlso proceeding in a southerly direction on this road was the plaintiff. He was driving a Plymouth automobile in good mechanical condition, with his headlights on dim or low beam. This car was traveling about 45-50 miles per hour when the plaintiff noticed a white light in front of him which he said looked like a one-eyed car coming toward him. When the plaintiff saw the light, he took his foot off his accelerator and began to slow down. As the plaintiff got closer to the light, he observed that it was on his side of the road. He switched his lights from dim to bright and it was then that he saw the plow 10 feet ahead of him in his lane. Plaintiff attempted to use his brakes but a collision occurred between the ear and the plow. In the collision, the plaintiff sustained serious injuries and the automobile and the plow were damaged.\nPlaintiff relies upon four contentions for reversal of the judgment of the trial court. He claims that the court erred in giving defendant\u2019s instructions Numbers 8 and 10A, erred in unfairly limiting plaintiff\u2019s argument, and also that the verdict and judgment are against the manifest weight of the evidence.\nDefendant contends that the court erroneously gave plaintiff\u2019s instruction Number 9 and that the verdict against him on the counterclaim should be reversed.\nInstruction number 8, offered by the defendant, was as follows:\n\u201cThere was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:\n\u201c \u2018No person shall drive any vehicle upon any public highway of this State at a speed which (1) is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; . . . and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.\u2019\n\u201cIf you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent or contributorily negligent before and at the time of the occurrence.\u201d\nIt is contended that there is no evidence that plaintiff was driving at a speed greater than was reasonable and proper under the facts and circumstances. Plaintiff also urges that the uncontroverted evidence shows that plaintiff decreased his speed in order to avoid a collision, and that the instruction could only confuse and mislead the jury since the defendant was operating the tractor and plow on the highway without proper lights.\nWe cannot agree with the plaintiff\u2019s contention. Rather, we believe that the failure to give this instruction would have constituted reversible error. \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, the judgment reversed and the cause remanded for new trial.\u201d Sims v. Chicago Transit Authority, 7 Ill App2d 21, 29, 30, 129 NE2d 23. Each party is entitled to have the court instruct the jury on his theory of the case, provided that there is an evidentiary basis for the instruction. \u201cAll that is required in order to justify the giving of an instruction is that there is some evidence in the record to support the theory set out in the instruction.\u201d Biggerstaff v. New York, C. & St. L. R. Co., 13 Ill App2d 85, 94, 141 NE2d 72. \u201cThe law is well settled that each party to a cause of action is entitled to direct and specific instructions embracing his theory of the facts where his evidence tends to prove such facts.\u201d Kirchner v. Kuhlman, 334 Ill App 339, 346, 79 NE2d 628. The issue of speed, as much as any other particular act of a party, is for the jury. Such an instruction calls upon the jury to examine all the facts and circumstances in evidence including the speed of the vehicles and then decide whether a party should have reduced his speed to avoid a collision. The fact that a party\u2019s speed was lower than the applicable maximum does not relieve that party from reducing his speed under certain circumstances.\nIn the instant case, the plaintiff was unable to turn his motor vehicle or reduce the speed of his vehicle in time to avoid colliding with the tractor and plow. We cannot say as a matter of law that he had no duty to reduce the speed of his car. The mere sight of an implement of husbandry should at once be a warning to overtaking vehicles. It is a matter of common knowledge that these machines do not move at the speed of an automobile, and a jury may find that the driver of an automobile should anticipate the potential danger thus presented and reduce his speed for the slowly-moving vehicle. Likewise, a \u201cone-eyed\u201d car is a hazard. There always exists the possibility that the greater portion of the car is in the path of the oncoming traffic.\nThe issue of speed was clearly a question for the jury, and the court did not err in giving defendant\u2019s instruction Number 8.\nInstruction Number 10A tendered by the defendant was an issues instruction patterned after IPI Number 20.02. That portion to which objection is made is as follows:\n\u201cThe Defendant counterclaims that he sustained damage while exercising ordinary care, and that the Plaintiff was negligent in one or more of the following respects:\nThat the Plaintiff negligently drove and operated his motor vehicle without having same under proper control;\nDrove and operated Ms motor veMcle without keeping a good and sufficient lookout ahead;\nDrove said motor vehicle at a speed which was greater than reasonable and proper;\nFailed to decrease the speed of said automobile in order to avoid striking the defendant\u2019s plow and tractor.\nThe Defendant further counterclaims that one or more of the foregoing was the proximate cause of his damage.\nPlaintiff denies that he was guilty of negligence in doing any of the things claimed by Defendant, and denies that the Defendant was in the exercise of ordinary care.\u201d\nPlaintiff asserts that his argument with reference to instruction Number 8 is equally applicable to this instruction. That is, he says there is no evidence to support the charge that the plaintiff failed to decrease Ms speed in order to avoid striking the plow and tractor. Our answer is that our statements hereinbefore made with reference to the giving of defendant\u2019s instruction Number 8 completely answers plaintiff\u2019s contention with respect to defendant\u2019s instruction Number 10A. The trial court was not permitted to weigh the issue of speed but was merely to determine whether an evidentiary basis existed for the contention. The resolution of the issue was for the jury.\nNow it is also claimed that the allegation that plaintiff drove the vehicle without keeping a good and sufficient lookout ahead, coupled with the allegation that plaintiff failed to decrease his speed to avoid striking the defendant\u2019s plow and tractor, is a misstatement of the law which confused and misled the jury.\nThere is no merit to this contention. The allegations in the instruction do not purport to he a statement of the law, but only what the defendant contends. The court instructed the jury as follows: \u201cYou must consider these instructions as a whole, not picking out one instruction and disregarding others.\u201d Also, the jury was instructed: \u201cIn order for the defendant to recover on his counterclaim, the defendant has the burden of proving each of the following propositions:\nFirst, that the defendant before and at the time of the occurrence was using ordinary care for his own safety.\nSecond, that the plaintiff acted, or failed to act, in one of the ways claimed by the defendant as stated in these instructions and that in so acting, or failing to act, the plaintiff was negligent.\u201d\nWhen all of the court\u2019s instructions are considered as one interrelated series, it is obvious that the court did not err in giving defendant\u2019s instruction Number 10A.\nIn addition, the specific objection now urged to this instruction was not made in the trial court and no such objection is shown in the abstract of the instructions conference. By failure to raise this particular objection in the trial court, this objection was waived. (Saunders v. Schultz, 20 Ill2d 301, 170 NE2d 163.)\nIt is also contended that the court erred in denying plaintiff\u2019s counsel proper argument. Plaintiff complains of the trial court\u2019s refusal to allow him to argue that the defendant was negligent in driving his tractor and plow on the highway in the nighttime when there was a wide, sodded, level shoulder beside the road. The abstract shows that the court sustained an objection because there was no such charge of negligence in the complaint and because the argument was not sustained by the evidence. The court also observed that his attention had not been directed to any law that prohibited a tractor from being on the highway after dark.\nThe exact statement made by plaintiff\u2019s counsel is not shown since the arguments were not a part of the abstract or the record. However, it is clear to us that the trial court correctly limited the argument of plaintiff\u2019s counsel. The defendant had a right to the use of the highway while his tractor was being used as an implement of husbandry. Counsel\u2019s argument was improper and misleading and the court properly sustained the objection.\nAs a final point, the plaintiff contends that the verdict of the jury is contrary to the manifest weight of the evidence. Our statements appearing hereinabove are adequate to dispose of this argument. \"We indicated earlier that the issues of plaintiff\u2019s speed and his failure to see and avoid collision with the tractor and plow were supported by some evidence.\n\u201cThe presence of contradictory evidence in the record affords no basis for a. reviewing court\u2019s disagreement with the conclusion reached by the trier of the facts. A jury verdict cannot be said to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident.\u201d Robinson v. Workman, 15 Ill App2d 25, 32, 145 NE2d 265; (Hinrichs v. Gummow, 41 Ill2d 428, 433, 434, 190 NE2d 610.) \u201c. . . the ruling of a Trial Court on a motion for new trial would not be disturbed on appeal unless there was a clear abuse of discretion. . . Thomas v. Weber, 14 Ill App2d 562, 564, 145 NE2d 128. \u201cTo be against the manifest weight of the evidence requires that an opposite conclusion be clearly evident.\u201d Arboit v. Gateway Transp. Co., 15 Ill App2d 500, 507, 146 NE2d 582.\nOn cross-appeal, the defendant contends that the court erred in failing to give an instruction to inform the jury that a driver should not follow another too closely. There was no evidence to justify the giving of this instruction and it was properly refused.\nFor these reasons, the judgment of the Circuit Court of Macon County is affirmed.\nAffirmed.\nCROW, P. J. and SMITH, J., concur.", "type": "majority", "author": "SPIVEY, J." } ], "attorneys": [ "Reno, O\u2019Byrne & Kepley, of Champaign (Donald M. Reno and Vance I. Kepley, of counsel), for appellant.", "Greanias & Owen, of Decatur, for appellee." ], "corrections": "", "head_matter": "John Wrighthouse, Plaintiff-Appellant, v. William Howard Brown, Defendant-Appellee.\nGen. No. 10,564.\nFourth District.\nOctober 20, 1964.\nReno, O\u2019Byrne & Kepley, of Champaign (Donald M. Reno and Vance I. Kepley, of counsel), for appellant.\nGreanias & Owen, of Decatur, for appellee." }, "file_name": "0191-01", "first_page_order": 203, "last_page_order": 213 }