{ "id": 2713800, "name": "GLADYS DEAN ALEXANDER, Plaintiff-Appellant, v. FLORENCE LEIHENSEDER, Defendant-Appellee", "name_abbreviation": "Alexander v. Leihenseder", "decision_date": "1976-04-07", "docket_number": "No. 74-386", "first_page": "315", "last_page": "319", "citations": [ { "type": "official", "cite": "37 Ill. App. 3d 315" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "245 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "42 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847204 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-2d/42/0103-01" ] }, { "cite": "126 N.E.2d 153", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "5 Ill. App. 2d 559", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5136243 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-app-2d/5/0559-01" ] }, { "cite": "138 N.E.2d 98", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "12 Ill. App. 2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5166087 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-app-2d/12/0001-01" ] }, { "cite": "91 N.E.2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "341 Ill. App. 370", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4989261 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/ill-app/341/0370-01" ] }, { "cite": "91 N.E.2d 401", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "405 Ill. 460", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627336 ], "year": 1950, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/ill/405/0460-01" ] }, { "cite": "207 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "57 Ill. App. 2d 129", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2597511 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0129-01" ] } ], "analysis": { "cardinality": 389, "char_count": 6525, "ocr_confidence": 0.874, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3653838505642607 }, "sha256": "dc52b37b4c7c762424944195911b0a5cbcb9129ce9044d92cd31c20f09752739", "simhash": "1:37d36fc20a5d8cb2", "word_count": 1046 }, "last_updated": "2023-07-14T17:14:56.744968+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GLADYS DEAN ALEXANDER, Plaintiff-Appellant, v. FLORENCE LEIHENSEDER, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiff, Gladys Dean Alexander, filed suit in Peoria County against Florence Leihenseder to recover damages for personal injury and property damage based on defendant\u2019s negligence. The action resulted from a collision between plaintiff\u2019s southbound automobile and defendant\u2019s westbound automobile at the intersection of Allen Street and First Street in Peoria, Illinois. Plaintiff called the defendant to testify as an adverse witness and elicited from her that the presence of parked cars, trees, shrubs and a house at the intersection where the accident occurred blocked defendant\u2019s vision of southbound traffic approaching the intersection on Allen Street. At the trial the jury returned a verdict for defendant upon which the court entered judgment. Plaintiff\u2019s post-trial motion for judgment notwithstanding the verdict was denied and plaintiff appealed.\nOn the basis of defendant\u2019s testimony elicited by plaintiff, IPI No. 12.05, as plaintiff\u2019s instruction No. 22, was offered by plaintiff but refused by the court and not given to the jury, which is the only issue presented for review. IPI No. 12.05 is entitled \u201cNegligence \u2014 Intervention of Outside Agency\u201d and provides as offered, \u201cIf you decide that [the] defendant was negligent and [her] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may have also been a cause of the injury.\u201d\nPlaintiff contends on appeal that the testimony of the defendant called as an adverse witness established that an intervening agency and possible superseding cause were put in issue. We disagree. It is our view that the parked cars, trees, shrubs and house were not intervening agencies but were merely circumstances or conditions of which defendant was or should have been aware. They were a part of the factual setting in which the jury had to decide whether defendant\u2019s act of crashing into plaintiff\u2019s automobile with her own was negligent. The criteria is whether defendant acted within the acceptable standard of the reasonable man under the particular factual setting of the present case, including the possible visibility obstructions at the intersection. The jury could and did properly measure whether defendant\u2019s conduct was negligent under all the existing conditions without the tendered jury instruction on the intervention of an outside or other agency and its effect on the actor\u2019s negligence.\nWhile we generally agree that in a given case an intervening force or agency could become a superseding cause and relieve the original negligent actor of liability, the trial court here correctly refused plaintiff\u2019s tendered jury instruction because the evidence did not support a theory of an intervening agency. The American Law Institute\u2019s Restatement (Second) of Torts \u00a7441 (1965) defines intervening force as one which actively operates in producing harm to another. The preceding section of Restatement (Second) of Torts \u00a7440 (1965) defines a superseding cause which will relieve a negligent actor from liability as * * an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.\u201d From the comments to the Restatement (Second) of Torts (1965) it is apparent that if a force should have been known by the actor to exist before he has lost control of the situation, it is one of the existing circumstances in the light of which the negligence of the actor\u2019s subsequent conduct is to be determined and is not an intervening force. Such a factual situation is present in the case at bar. The evidence produced indicated that there was not a legally sufficient intervening force present, and therefore no necessity of instructing the jury on the consequences of the presence of a superseding cause on defendant\u2019s negligence. The primary purpose of jury instructions is to make the jury aware of the law that is applicable to the particular set of facts before them. The factual setting presented by the evidence in the case is determinative of what law should be applied by the jury.\nThe case of Drell v. American National Bank & Trust Co., 57 Ill. App. 2d 129, 207 N.E.2d 101 (1965), established that IPI No. 12.05 is applicable only when the concept of an intervening cause is present. An intervening and efficient cause was described by the Illinois Supreme Court in Johnston v. City of East Moline, 405 Ill. 460, 464, 91 N.E.2d 401, 403 (1950), as \u201c\u00b0 \u00b0 \u00b0 a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury.\u201d The Johnston case further provided that the intervening force would not break the causal connection and itself become the proximate cause of the injury if the intervention of the force itself was foreseeable. We believe the obstruction or the possible obstructions to vision at the intersection here were foreseeable by defendant and therefore not an intervening agency which would require giving the jury instruction (IPI No. 12.05) tendered by plaintiff.\nThe cases relied upon by the appellant to support her position that failure to give IPI No. 12.05 was error are not controlling. (See Romine v. City of Watseka, 341 Ill. App. 370, 91 N.E.2d 76 (1950); Manion v. Chicago, Rock Island & Pacific Ry. Co., 12 Ill. App. 2d 1,138 N.E.2d 98 (1956), Liby v. Town Club, 5 Ill. App. 2d 559,126 N.E.2d 153 (1956); Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co., 42 Ill. 2d 103, 245 N.E.2d 762 (1969).) In those cases the courts\u2019 approval of the use of IPI No. 12.05 involved situations where the evidence produced established the existence of an actual intervening agency and not situations where the evidence established facts which form one of the several circumstances in light of which defendant\u2019s conduct is judged negligent or not. Those cases are, therefore, not applicable to the case at bar.\nThe court\u2019s refusal to give the plaintiff\u2019s instruction No. 22 (IPI No. 12.05) was not error. The judgment of the Circuit Court of Peoria County is affirmed.\nAffirmed.\nSTOUDER, P. J., and STENGEL, J., concur.", "type": "majority", "author": "Mr. JUSTICE BARRY" } ], "attorneys": [ "Michael Heller, of Peoria, for appellant.", "Westervelt, Johnson, Nicoll & Keller, of Peoria (Roger E. Holzgrafe, of counsel), for appellee." ], "corrections": "", "head_matter": "GLADYS DEAN ALEXANDER, Plaintiff-Appellant, v. FLORENCE LEIHENSEDER, Defendant-Appellee.\nThird District\nNo. 74-386\nOpinion filed April 7, 1976.\nMichael Heller, of Peoria, for appellant.\nWestervelt, Johnson, Nicoll & Keller, of Peoria (Roger E. Holzgrafe, of counsel), for appellee." }, "file_name": "0315-01", "first_page_order": 343, "last_page_order": 347 }