{ "id": 5638833, "name": "ELROY C. SANDQUIST, JR., Ex'r of the Estate of Walter W. Smith, Deceased, Plaintiff-Appellant, v. GEORGE KEFALOPOULOS, Defendant-Appellee", "name_abbreviation": "Sandquist v. Kefalopoulos", "decision_date": "1977-05-31", "docket_number": "No. 76-745", "first_page": "456", "last_page": "461", "citations": [ { "type": "official", "cite": "49 Ill. App. 3d 456" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "53 Ill. 2d 605", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "291 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 638", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2762178 ], "pin_cites": [ { "page": "641-42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0638-01" ] }, { "cite": "355 N.E.2d 683", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639304 ], "year": 1976, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0223-01" ] }, { "cite": "359 N.E.2d 1037", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2895245 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0394-01" ] }, { "cite": "253 N.E.2d 699", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "117 Ill. App. 2d 217", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1586074 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/117/0217-01" ] }, { "cite": "180 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 2d 11", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5234664 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/33/0011-01" ] }, { "cite": "31 Ill. 2d 631", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1961, "opinion_index": 0 }, { "cite": "204 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "55 Ill. App. 2d 418", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5283284 ], "year": 1961, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0418-01" ] }, { "cite": "62 N.E.2d 443", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "390 Ill. 478", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2508445 ], "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill/390/0478-01" ] }, { "cite": "316 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5378423 ], "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0629-01" ] }, { "cite": "342 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 428", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5305032 ], "pin_cites": [ { "page": "431-32" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0428-01" ] }, { "cite": "354 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 627", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489215 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "632" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0627-01" ] }, { "cite": "344 N.E.2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2634360 ], "year": 1976, "pin_cites": [ { "page": "939" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/0934-01" ] } ], "analysis": { "cardinality": 626, "char_count": 11300, "ocr_confidence": 0.881, "pagerank": { "raw": 8.924687051681446e-08, "percentile": 0.5007075702096918 }, "sha256": "a5535927d947eb5acf02dd124d1cc11e1a8d014bcd5b6a6f72069b4d1420cd64", "simhash": "1:bf33b05d2f24cd71", "word_count": 1897 }, "last_updated": "2023-07-14T15:10:40.599780+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELROY C. SANDQUIST, JR., Ex\u2019r of the Estate of Walter W. Smith, Deceased, Plaintiff-Appellant, v. GEORGE KEFALOPOULOS, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nWalter Smith, a pedestrian, was injured by an automobile driven by George Kefalopoulos (defendant). A jury returned a general verdict for Smith and awarded damages of *22,000. The jury also answered a special interrogatory, finding that defendant had been negligent. A second special interrogatory, on the question of Smith\u2019s contributory negligence, was returned unanswered and the jury was instructed to resume deliberation. A special finding was then returned that Smith had been contributorily negligent. The trial court set aside the general verdict and entered judgment for defendant in accord with the special finding. Smith appealed. Smith\u2019s counsel has suggested his death and this court has substituted Elroy C. Sandquist, Jr., executor, as plaintiff-appellant.\nIn this court, plaintiff contends that the special finding on contributory negligence is against the manifest weight of the evidence and further that there is no evidence of Smith\u2019s lack of due care so that he was free of contributory negligence as a matter of law. Plaintiff also urges that the return of the general verdict and the inconsistent special finding at different times requires that a new trial be granted.\nThe scene of the occurrence was the intersection of Montrose Avenue, which runs east and west, and the north-south Albany Avenue. At this corner, Montrose is a through street with traffic lights two blocks to the east and the same distance to the west. There are stop signs for Albany traffic crossing Montrose. A liquor store is located on the northeast corner. The accident occurred between 6:30 and 7 p.m. on January 26,1973. The streets were dry.\nSmith testified that he drank a small beer in the liquor store and left after about 30 minutes. He walked to the curb at the corner crosswalk, stopped and looked east. He could see the stop light two blocks away and he saw no cars or car lights approaching from the east. He then looked west. He saw the traffic light two blocks distant but he testified that he did not see any cars coming and also that he saw no cars \u201cclose by\u201d from that direction. When he looked in each direction, his vision was unobstructed. Smith then began to cross the street, looking south. He did not remember looking east or west again. He was struck by defendant\u2019s car, going west in the middle lane of Montrose. Before the impact he did not hear \u201cmotors running or brakes screeching or horns, or anything * * He also testified that there is a bus stop at the curb in front of the liquor store. He did not remember whether any cars were parked along the north curb of Montrose in that area. He was dressed in a dark coat and dark or black pants.\nDefendant testified that he was driving west on Montrose at 6:30 p.m. with his headlights turned on. When he was a block from Albany, his speed was between 20 and 25 m.p.h. When defendant first saw Smith, he was 1/2 car lengths or \u201ca few feet\u201d away and was \u201ca little bit south of the cars * * *\u201d parked on the north side of Montrose. Defendant braked and sounded the horn. When Smith was hit, he was in the crosswalk; defendant\u2019s car was \u201cjust stopping\u201d and was traveling at about 2 m.p.h.\nThe passenger in defendant\u2019s vehicle, Kathy Koulouris, testified that the accident \u201chappened so fast.\u201d Smith was standing, he walked out \u201c[a]nd we just hit him all of a sudden.\u201d\nDefense witness Hatzidiakos testified that he was driving his car east on Montrose. He saw Smith start to cross Montrose at Albany. Smith was walking in a southwestern direction, looking straight ahead. At the same time, the witness stopped his car less than 5 yards from Albany and saw the collision. He testified, \u201c[Smith] put his feet in the street, you know. Then the car * * * hit him.\u201d\nThe primary issue in this appeal is whether the trial court erred in setting aside the general verdict and rendering judgment in accordance with the special finding on Smith\u2019s contributory negligence. The Civil Practice Act provides specifically that, \u201cWhen the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.\u201d (Ill. Rev. Stat. 1975, ch. 110, par. 65.) A reviewing court will not disturb a judgment entered upon the answer to a special interrogatory unless, as in the case of a general verdict, the finding was \u201cpalpably erroneous and wholly unwarranted from the manifest weight of the evidence.\u201d Walters v. Taylor (1976), 36 Ill. App. 3d 934, 939, 344 N.E.2d 765. See generally Drzewiecki v. McCaskill (1976), 41 Ill. App. 3d 627, 632, 354 N.E.2d 144; Huston v. Chicago Transit Authority (1976), 35 Ill. App. 3d 428, 431-32, 342 N.E.2d 190.\nIn the case before us, defendant was driving west with his headlights on. Smith may have looked to the east before entering the street, yet he testified that he neither saw nor heard an approaching car. According to the passenger in defendant\u2019s car and the motorist driving east, who offered the only testimony on the question, the collision occurred very shortly after Smith began to cross Montrose. An issue of fact thus arose as to whether Smith reasonably should have observed the imminent danger created by defendant\u2019s approaching automobile. Smith testified on direct examination that he saw no cars coming from the east or the west. On cross-examination he added that he saw no cars coming \u201cclose by\u201d from the west. This testimony is questioned by that of the motorist that he was driving from the west and was near enough to the intersection to stop his car at Albany, where he saw the occurrence.\nThe presence of parked cars at the curb between Smith and defendant\u2019s vehicle cannot be overlooked on this issue. Smith looked straight ahead while walking into the westbound traffic lane without ever looking again for his own safety, although he must have known that his vision was obstructed. \u201c[T]he law does not compel a pedestrian to constantly stare in the direction of oncoming traffic \u201d * (Jamison v. Lambke (1974), 21 Ill. App. 3d 629, 634, 316 N.E.2d 93.) But, where a pedestrian looks once and his vision is obstructed, his failure to look again when he has passed the obstruction, and before he enters the possibly hazardous portion of the street is, in our opinion, sufficient to create a jury question as to whether he exercised due care for his own safety. (Cf. Moran v. Gatz (1945), 390 Ill. 478, 486, 62 N.E.2d 443.) Smith testified that his vision was \u201cunobstructed.\u201d This may have been true in certain aspects as he could have seen the traffic signals which were at a higher level than an automobile. But, the undisputed presence of parked cars at the curb, which Smith could not remember, suggests that his vision of the dangerous area of the street was necessarily obstructed. The special finding was, in our opinion, amply supported by the record and was not contrary to the manifest weight of the evidence.\nThe provision of the Illinois Vehicle Code that in the absence of traffic control signals \u201cthe driver of a vehicle shall yield the right-of-way, * * * to a pedestrian crossing the roadway within a crosswalk * * *\u201d(Ill. Rev. Stat. 1975, ch. 95\u00bd, par. 11 \u2014 1002), cannot assist plaintiff. This statute does not absolve a pedestrian from the duty to use ordinary care for his own safety in crossing at the crosswalk. (See Larson v. Fell (1965), 55 Ill. App. 2d 418, 427, 204 N.E.2d 475, appeal denied, 31 Ill. 2d 631; Vasic v. Chicago Transit Authority (1961), 33 Ill. App. 2d 11, 11i-11j, 180 N.E.2d 347, and cases there discussed.) The critical point here is that the special interrogatory is supported by evidence that Smith was contributorily negligent in crossing the street.\nThis fact distinguishes the cases relied on by plaintiff: Huston v. Chicago Transit Authority, Jamison v. Lambke, and Kirby v. Swedberg (1969), 117 Ill. App. 2d 217, 253 N.E.2d 699. In each of them, the danger from the approaching vehicle was not reasonably apparent to the pedestrian before he or she entered the crosswalk. In these situations, no amount of additional looking at the street in the moment prior to crossing would have disclosed the presence of imminent danger. The distinction is also emphasized by Walls v. Hofbauer (1977), 45 Ill. App. 3d 394, 359 N.E.2d 1037, where this court reversed a judgment entered upon a special finding that plaintiff had been contributorily negligent. In Walls, plaintiff first looked both ways for oncoming traffic. Defendant\u2019s car was a substantial distance away when plaintiff entered the street. There was no evidence, as in the case before us, that plaintiff had walked into the path of defendant\u2019s automobile without looking again after he had reached a position from which his view was no longer obstructed.\nFrom this decision that the special finding was not contrary to the manifest weight of the evidence, it follows logically that we cannot hold Smith free from contributory negligence as a matter of law.\nPlaintiff asserts that the trial court erred in submitting the special interrogatory to the jury. This argument was not raised in the post-trial motion; it is therefore waived. (Ill. Rev. Stat. 1975, ch. 110A, par. 366(b)(2)(iii); Ill. Rev. Stat. 1975, ch. 110, par. 68.1(2).) Even if the point were not waived, the trial court was required to submit the interrogatory at defendant\u2019s request. Smith\u2019s contributory negligence was a material question of ultimate fact. Ill. Rev. Stat. 1975, ch. 110, par. 65; Estate of Constas v. Constas (1976), 42 Ill. App. 3d 223, 227, 355 N.E.2d 683; Drzewiecki v. McCaskill (1976), 41 Ill. App. 3d 627, 632; Green v. Brown (1972), 8 Ill. App. 3d 638, 641-42, 291 N.E.2d 18, appeal denied, 53 Ill. 2d 605.\nPlaintiff contends that the special finding on the question of Smith\u2019s contributory negligence was the product of jury confusion. The jury returned its general verdict in favor of plaintiff and its special finding that defendant was negligent. The special interrogatory regarding contributory negligence was left unsigned. The court informed the jury, \u201cI am obliged to send this one question back to you in your jury room and I am required by law to ask you to mark it yes or 0 * * no.\u201d This direction was a correct statement of the law which provides that the jury \u201cmust be required \u00b0 \u00b0 \u00b0 to find specially * \u201d in response to the interrogatory. (Ill. Rev. Stat. 1975, ch. 110, par. 65. See also Ill. Ann. Stat., ch. 110, par. 65, Supplement to Historical and Practice Notes, at 84 (Smith-Hurd Supp. 1977).) The jury then deliberated and returned without further interruption with the interrogatory form completed.\nKirby v. Swedberg, the only authority cited by plaintiff, is simply not pertinent on this point.\nThe judgment appealed from is accordingly affirmed.\nJudgment affirmed.\nMcGLOON and BUA, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Peterson, Ross, Rail, Barber & Seidel, of Chicago (Elroy C. Sandquist, John P. Moe, Ernest W. Irons, and Ellen J. Kerschner, of counsel), for appellant.", "Stem and Rotheiser, of Chicago (James M. Dupree, of counsel), for appellee." ], "corrections": "", "head_matter": "ELROY C. SANDQUIST, JR., Ex\u2019r of the Estate of Walter W. Smith, Deceased, Plaintiff-Appellant, v. GEORGE KEFALOPOULOS, Defendant-Appellee.\nFirst District (1st Division)\nNo. 76-745\nOpinion filed May 31, 1977.\nPeterson, Ross, Rail, Barber & Seidel, of Chicago (Elroy C. Sandquist, John P. Moe, Ernest W. Irons, and Ellen J. Kerschner, of counsel), for appellant.\nStem and Rotheiser, of Chicago (James M. Dupree, of counsel), for appellee." }, "file_name": "0456-01", "first_page_order": 478, "last_page_order": 483 }