{
  "id": 3314534,
  "name": "EDWARD J. PALAUSKY, JR., a Minor, by Edward J. Palausky, Sr., his Father and Next Friend, et al., Plaintiffs-Appellants, v. DEBORAH J. LANDERS, Defendant-Appellee",
  "name_abbreviation": "Palausky v. Landers",
  "decision_date": "1978-12-26",
  "docket_number": "No. 77-569",
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  "last_updated": "2023-07-14T17:17:27.014484+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "EDWARD J. PALAUSKY, JR., a Minor, by Edward J. Palausky, Sr., his Father and Next Friend, et al., Plaintiffs-Appellants, v. DEBORAH J. LANDERS, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE KARNS\ndelivered the opinion of the court:\nPlaintiffs, Edward J. Palausky, Jr., a minor, by Edward J. Palausky, Sr., his father, and Edward J. Palausky, Sr., individually, filed suit in the Circuit Court of St. Clair County against defendant Deborah J. Landers to recover damages for personal injuries allegedly caused by defendant\u2019s negligence in the operation of her automobile. Plaintiffs appeal from the judgment entered on a verdict in defendant\u2019s favor alleging that an improper instruction was given to the jury.\nOn November 14,1974, plaintiff, Edward Palausky, Jr., a pedestrian, was struck by a vehicle driven by Ms. Landers as he was crossing West Main Street in Belleville, Illinois. The testimony was in conflict whether plaintiff had crossed the street within a crosswalk. Defendant tendered Instruction No. 5 patterned after Illinois Pattern Instructions, Civil, No. 70.03 (2d ed. 1971), regarding the duty of a pedestrian crossing outside a crosswalk:\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\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.\u2019\nIf 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 contributorily negligent before and at the time of the occurrence.\u201d\nThe tendered instruction was phrased in virtually the same language as section 11 \u2014 1003 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95\u00bd, par. 11 \u2014 1003), except that it omitted the following statutory language defining the driver\u2019s duty of care:\n\u201cNotwithstanding the foregoing 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 \u201d # \u00b0 upon a roadway.\u201d (Ill. Rev. Stat. 1973, ch. 95\u00bd, par. 11 \u2014 1003(c).)\nAlthough it is difficult to discern from the record what occurred at the instruction conference, counsel for plaintiffs apparently objected to defendant\u2019s instruction on the grounds that it defined a pedestrian\u2019s, but not a driver\u2019s, duty of care. We note, however, that after plaintiffs objected to this instruction the trial court gave them the opportunity to tender an instruction defining the parties\u2019 respective duties, which opportunity plaintiffs declined. In addition, as part of trial strategy, plaintiffs\u2019 counsel apparently chose to avoid the issue of a pedestrian\u2019s duty of care in his instructions by focusing instead on the motorist. For example, plaintiffs\u2019 Instruction No. 10, which essentially paraphrases the language of subsection (c) of section 11 \u2014 1003 of the Illinois Vehicle Code quoted above, states in part:\n\u201d * [EJvery driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall exercise proper precaution upon observing any child upon a roadway.\u201d\nPlaintiffs\u2019 Instruction No. 23 also defines the driver\u2019s duty of care:\n\u201cSpeed must be decreased as may be necessary to avoid colliding with a person on the highway in compliance with legal requirements and the duty of all persons to use due care.\u201d\nPlaintiffs\u2019 Instruction No. 9 states:\n\u201cIt was the duty of the defendant, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff.\u201d\nAs part of the instructions tendered to the jury, the court submitted defendant\u2019s special interrogatory which asked whether Edward Palausky, Jr., had been contributorily negligent. The jury answered the special interrogatory in the affirmative.\nPlaintiffs argue that the trial court erred in submitting defendant\u2019s Instruction No. 5 in that it failed to properly define the relationship between the pedestrian\u2019s and the driver\u2019s duties of care. In essence, plaintiffs\u2019 argument is that the driver had an overriding or superceding duty of care notwithstanding the pedestrian\u2019s contributory negligence. Counsel for plaintiff cites no authority, nor do we find any, that supports this proposition.\nThe law is clear that both the pedestrian and the motorist have mutual obligations to exercise due care. The pedestrian who is outside a crosswalk has the specific duty of yielding the right of way to oncoming traffic, while the motorist has the duty to exercise due care in avoiding the pedestrian. (Zeller v. Durham, 33 Ill. App. 2d 273, 179 N.E.2d 34 (2d Dist. 1962); Woolsey v. Rupel, 13 Ill. App. 2d 48, 140 N.E.2d 855 (4th Dist. 1957).) In light of this mutual obligation, we find no error in the trial court submitting different instructions defining the parties\u2019 standards of care. It is the overwhelming authority in this State that jury instructions are to be considered as a whole and read together to determine whether they fairly and accurately state the law. (Duffy v. Cortesi, 2 Ill. 2d 511, 119 N.E.2d 241 (1954); Cole v. Brundage, 36 Ill. App. 3d 782, 344 N.E.2d 583 (1st Dist. 1976).) In a reading of the various instructions submitted to the jury, we fail to see how plaintiff can reasonably object to defendant\u2019s Instruction No. 5 considering his numerous instructions which define a motorist\u2019s duty of care. The language which plaintiff asserts was erroneously omitted from defendant\u2019s Instruction No. 5 was in fact inserted in plaintiffs\u2019 Instruction No. 10. Even if we were to find error in the failure of the trial court to tender one instruction regarding the parties\u2019 relative obligations, we note the reluctance of an appellate court to reverse cases based on technical errors in instructions especially where a deficiency in one instrument may be cured in another. Duffy v. Cortesi, 2 Ill. 2d 511, 515-16, 119 N.E.2d 241, 244 (1954); Cole v. Brundage, 36 Ill. App. 3d 782, 803, 344 N.E.2d 583, 599. (1st Dist. 1976).\nIn conclusion, we find it curious that plaintiffs challenge the sufficiency of defendant\u2019s Instruction No. 5 when the trial court gave them ample opportunity to submit an instruction containing the same language as found in section 11 \u2014 1003 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95\u00bd, par. 11 \u2014 1003). While the failure of plaintiffs to tender such an instruction independently supports the trial court\u2019s judgment, it is not necessary to our decision. The narrow issue on appeal was whether the jury was properly instructed. We believe it was. Accordingly, the judgment of the Circuit Court of St. Clair County is affirmed.\nAffirmed.\nEBERSPACHER and JONES, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE KARNS"
      }
    ],
    "attorneys": [
      "Hotto, Neubauer & Rosen, of Fairview Heights (Rich Rosen, of counsel), for appellants.",
      "Joseph R. Davidson, of Bernard & Davidson, of Granite City, for appellee."
    ],
    "corrections": "",
    "head_matter": "EDWARD J. PALAUSKY, JR., a Minor, by Edward J. Palausky, Sr., his Father and Next Friend, et al., Plaintiffs-Appellants, v. DEBORAH J. LANDERS, Defendant-Appellee.\nFifth District\nNo. 77-569\nOpinion filed December 26, 1978.\nHotto, Neubauer & Rosen, of Fairview Heights (Rich Rosen, of counsel), for appellants.\nJoseph R. Davidson, of Bernard & Davidson, of Granite City, for appellee."
  },
  "file_name": "0985-01",
  "first_page_order": 1007,
  "last_page_order": 1010
}