Opinion
Gen. No. 9,459.
Opinion filed February 28, 1945. Released for publication March 27, 1945.
1. AUTOMOBILES AND MOTOR VEHICLES, § 112.1 — conflicting evidence. In action by cab company for damages to its property as result of collision between one of its taxicabs and car driven by defendant who filed counterclaim for damages wherein there was evidence supporting allegations of both complaint and counterclaim, verdict of $1,500 for defendant on his counterclaim was held not against manifest weight of evidence and was not disturbed.
See Callaghan's Illinois Digest, same topic and section number.
2. AUTOMOBILES AND MOTOR VEHICLES, § 161fn_ — instructions as to contributory negligence of cab driver. In action by cab company for damages to its property as result of collision between one of its taxicabs and car driven by defendant who filed counterclaim for damages, instruction, that cab company could not recover if by failure of cab driver to exercise reasonable care for his own safety, immediately before and at time of collision he contributed to collision in any degree, was held to inaccurately state law concerning possible contributory negligence on part of cab company.
3. AUTOMOBILES AND MOTOR VEHICLES, § 161fn_ — instructions as to contributory negligence of party filing counterclaim. In action by cab company for damages to its property as result of collision between one of its taxicabs and car driven by defendant who filed counterclaim for damages, instruction on behalf of plaintiff, that if jury believed from evidence that defendant was guilty of any negligence which contributed to any degree to injuries complained of in counterclaim, defendant could not recover and that verdict on counterclaim should be for plaintiff, was held erroneous.
4. APPEAL AND ERROR, § 925fn_ — erroneous instructions as to contributory negligence of both parties. In action by cab company for damages to its property as result of collision between one of its taxicabs and car driven by defendant who filed counterclaim for damages wherein instruction on behalf of defendant was held to inaccurately state law concerning possible contributory negligence on part of plaintiff, and instruction on behalf of cab company was erroneous as to contributory negligence of defendant, held that since cab company permitted court to commit same error in its behalf as was made in defendant's behalf, judgment of trial court for defendant on his counterclaim would be affirmed.
5. AUTOMOBILES AND MOTOR VEHICLES, § 144fn_ — instructions as accurate statement of law. In cab company's action for damages as result of collision with motorist, instructions, though not models of clarity, were held proper where they did not state law of case inaccurately or in manner that would tend to confuse jury.
6. AUTOMOBILES AND MOTOR VEHICLES, § 166fn_ — form of verdict. In action by cab company for damages to its property, as result of collision between one of its taxicabs and car driven by defendant, who filed counterclaim for damages, wherein before trial, cause was consolidated with suit arising out of same occurrence between passenger in same cab and defendant, form of verdict of jury to effect that defendant was not guilty and awarding him verdict for $1,500 on his counterclaim against cab company was proper.
Appeal by plaintiff from the Circuit Court of Sangamon county; the Hon. LAWRENCE E. STONE, Judge, presiding. Heard in this court at the February term, 1945. Judgment affirmed. Opinion filed February 28, 1945. Released for publication March 27, 1945.
HERMAN H. COLIN and C.A. LIVINGSTONE, both of Springfield, for appellant; C.A. LIVINGSTONE, of Springfield, of counsel.
DAVISON DAVISON, of Springfield, for appellee.
The Allied Cab Company brought suit in to circuit court of Sangamon county against Walter E. Hopkins for damages to its property resulting from a collision between one of its taxicabs and a car driven by Hopkins. Hopkins thereafter filed a counterclaim for damages, for personal injuries, and damages to his car. Before trial this cause was consolidated with another suit arising out of the same occurrence between Emma Marchetti, the passenger in the cab in question, and Hopkins. Trial was had before a jury who found Hopkins not guilty in both cases and awarded him a verdict for fifteen hundred dollars on his counterclaim against the cab company. Emma Marchetti prevailed on a motion for a new trial in the circuit court; a similar motion by the Cab Company was overruled and it has appealed to this court.
The Cab Company first contends that the verdicts of the jury finding Hopkins not guilty of the charges in the complaint and finding it guilty of the negligence alleged in his counterclaim are not supported by the evidence. The Cab Company sought to prove at the trial that Hopkins made a left turn directly in front of one of its cabs in violation of certain statutes of the State of Illinois and ordinances of the City of Springfield. Hopkins, on the other hand, contended that he drove to the center of the intersection and during a pause and before turning left was struck by one of the company's vehicles. There is evidence in the record supporting the allegations of both complaint and counterclaim and we believe the trial court correctly submitted the issues involved to a jury. Although the case is a close one on the facts, we cannot say the verdict is against the manifest weight of the evidence.
The Cab Company also challenges certain instructions given in behalf of Hopkins by the trial court. Some of these instructions were given to guide the jury in deciding the issues between Hopkins and Emma Marchetti; the balance were directed to the controversy between Hopkins and the Cab Company. We do not believe that the first group of instructions can be reviewed on this appeal. While it is true that these instructions were before the jury when it was weighing the merits of the case between the Cab Company and Hopkins, nevertheless it must be assumed that the jury was able to and did weigh each of the multiple issues before it separately and in the light of the specific instructions applicable thereto.
We do believe, however, that the circuit court erred while instructing the jury on the question of the Cab Company's contributory negligence. The jury was instructed that the "Allied Cab Company cannot recover in this case, if by the failure of the driver of the cab to exercise reasonable care for his own safety, immediately before and at the time of the collision, he contributed to the collision in any degree." An instruction similar to this was condemned in Schmidt v. Anderson, 301 Ill. App. 28, 21 N.E.2d 825 because it failed to inform the jury that the plaintiff's negligence must have been the proximate cause of the accident before recovery would be barred. For the same reason the instruction before us inaccurately states the law concerning possible contributory negligence on the part of the Allied Cab Company.
While error was committed by the circuit court, we believe the error was harmless in this particular case. An examination of the record discloses that there was given on behalf of the Cab Company the following instruction: "The jury are instructed that if it believes from the evidence that the defendant Walter Hopkins was guilty of any negligence which contributed to any degree to the injuries of which he complains in his counterclaim, then he cannot recover and your verdict as to such counterclaim should be for the plaintiff." Since the Cab Company permitted the court to commit the same error in its behalf as it now complains was made in Hopkin's behalf, it is not entitled to relief. Slack v. Harris, 200 Ill. 96; Harney v. Sanitary Dist. of Chicago, 260 Ill. 54.
We have carefully examined the remaining instructions to which the Cab Company objects. While they are not models of clarity we do not believe they state the law of the case inaccurately or in a manner that would tend to confuse a jury, nor do we believe that the forms of verdict returned by the jury are subject to complaint since considered together they accurately indicate the decisions reached.
For the reasons herein stated the judgment of the circuit court of Sangamon county is therefore affirmed.
Judgment Affirmed.