Rubinstein v. Fred A. Coleman Co.

159 N.E.2d 379, 22 Ill. App. 2d 116
CourtAppellate Court of Illinois
DecidedJuly 10, 1959
DocketGen. 11,217
StatusPublished
Cited by15 cases

This text of 159 N.E.2d 379 (Rubinstein v. Fred A. Coleman Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rubinstein v. Fred A. Coleman Co., 159 N.E.2d 379, 22 Ill. App. 2d 116 (Ill. Ct. App. 1959).

Opinion

JUSTICE McNEAL

delivered the opinion of the court.

This action was brought by Harriett Rubinstein, Joseph Rubinstein, her husband, and Robert Rubinstein, their two-year-old son, against the owner and driver of a garbage truck, to recover damages for personal injuries sustained in a collision which occurred at the intersection of Marshman and Judson Streets in Highland Park, about 1:00 p. m. on October 7, 1955. The garbage truck was moving south on Judson Street and Mrs. Rubinstein was driving a Cadillac automobile west on Marshman Street. Joseph and Robert Rubinstein were passengers in the automobile. In their complaint plaintiffs prayed for judgments for $100,000, $200,000 and $15,000, respectively, on account of defendants’ negligent operation of the truck. No questions were raised on the pleading. Defendants denied plaintiffs’ allegations of negligence and alleged that plaintiffs’ injuries were the result of the negligent acts of Harriett Rubinstein, individually and as the agent and servant of Joseph Rubinstein.

The issues were submitted to a jury which returned verdicts finding defendants not guilty as to the claims of Joseph and Harriett Rubinstein, but guilty as to the claim of Robert Rubinstein and assessing his damages at $37.50. The jury also answered a special interrogatory that defendant McCaran was guilty of negligence at the time and place of the collision. Judgments were entered on the verdicts, plaintiffs’ post-trial motions were denied, and this appeal followed.

On appeal plaintiffs contend that the trial court erred in its rulings on the admission of evidence, and that the jury was improperly instructed, i. e. plaintiffs’ instructions 1, 12 and 13 should have been given, defendants’ instructions 15 and 16 should not have been given, and the court erred in giving defendants’ instructions 7, 9, 10, 15, 16 and 20 because they were directory.

Plaintiffs’ instructions 1, 12 and 13 and defendants’ instructions 7, 9, 10, 15 and 20 were set forth verbatim in Rubinsteins’ post-trial motion, but the motion contains no reference to defendants’ 16th instruction, no specific objection to or reason why instructions 7, 9, 10, 15 and 20 were erroneous, and no specification of which six of defendants’ instructions were claimed to be directory. Further, according to the abstract, the sole reference to anything resembling a conference on instructions are the words: “Colloquy pertaining to instructions,” opposite reference to pages 416 to 443 of the record.

The abstract should present every error relied upon for reversal, and everything necessary to decide the questions raised, in such manner that it will not be necessary for the court to resort to the record. Alleged errors not shown by the abstract of the record, or based on facts or matters not appearing therein, will not be considered on review. 2 I.L.P. 444, 462, Appeal and Error 483, 512. The abstract should be sufficient to present fully every error relied upon. Appellate Court Rule 6. A court of review is not required to go to the record to reverse, although it may search the record regardless of the abstract in order to affirm. Rickman Chemical Co. v. Lowenthal, 16 Ill.App.2d 568, 571, 149 N.E.2d 351, 353.

We have held that a party will not be heard to complain of alleged errors in instructions where such errors were not called to the trial court’s attention by specific objections made either at the conference on instructions or in a post-trial motion. Arboit v. Gateway Transportation Co., 15 Ill.App.2d 500, 512, 146 N.E.2d 582; Onderisin v. Elgin, J. & E. Ry. Co., 20 Ill.App.2d 73, 77, 155 N.E.2d 338. Since plaintiffs’ abstract wholly fails to show whether or not they made specific objections to any of defendants’ instructions at the conference and their post-trial motion contains no specific objections to such instructions, we consider that plaintiffs’ objections to instructions given for defendants are not properly presented or preserved for review.

Plaintiffs’ refused instruction 1 sets forth the allegations contained in plaintiffs’ complaint and defendants’ answer and concludes with a peremptory instruction to the jury to find for plaintiffs if they proved by a preponderance that defendants were guilty of one or more of the several “wrongful acts” set forth in the complaint. This instruction consists of about 500 words and covers about two pages of abstract. In Signa v. Alluri, 351 Ill. App. 11, the Court said that the safe and proper way to acquaint the jury with the issues is for “the court to inform the jury in a clear and concise manner of the issues raised by the pleading. This should be accomplished by a summary of the pleadings, succinctly stated without repetition and without undue emphasis.” We have carefully examined this instruction and are of the opinion that it does not comply with the standards set in Signa v. Alluri, and that the trial court committed no error in refusing to give it to the jury.

Refused instructions 12 and 13 tendered by plaintiffs were based upon section 68, Art. IX of the Uniform Act Regulating Traffic on Highways (Par. 165, Ch. 95½ Ill. Rev. Stat.), prior to the 1953 amendment. Before such amendment, this section provided that vehicles shall give the right-of-way to vehicles approaching along intersecting highways from the right and shall have the right-of-way over those approaching from the left. After amendment, the section required the driver of a vehicle approaching an intersection to yield the right-of-way to a vehicle which has entered the intersection, and provided that when two vehicles enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. The court gave defendants’ instructions 22 and 23, which correctly informed the jury as to the right-of-way at the intersection according to the provisions of the statute in force on the date of the collision. The provisions of a prior statute respecting’ the right-of-way at the intersection involved were not applicable or material on the trial of this cause. The trial court properly refused plaintiffs’ instructions 12 and 13.

Defendant McCaran testified that on the day of the collision he was driving a white garbage truck, 25 feet long, 9 feet high, and weighing 13,000 pounds. He stopped the truck on Judson Street about half a block north of its intersection with Marshman. He was proceeding on Judson to his next stop about 100 feet south of the intersection, and traveling about 10 miles an hour. He looked to his left down the intersecting street as far as he could see, and saw no one. He looked to his right and nobody was coming. When he was 20 feet from Marshman he looked to his left again and then saw the Eubinstein auto about 200 feet away, traveling about 40 miles an hour. He immediately applied his brakes. The Cadillac continued in a straight course and at the same speed. The truck was almost stopped at the time of the impact. The right side of the bumper on the truck struck the right rear fender on the Cadillac. The impact knocked the rear of the Cadillac in a half circle around to the south, so that the car was facing east on Marshman about 150 feet from the intersection.

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Bluebook (online)
159 N.E.2d 379, 22 Ill. App. 2d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubinstein-v-fred-a-coleman-co-illappct-1959.