Williams v. Conner , 228 Ill. App. 3d 350 ( 1992 )

JUSTICE CHAPMAN,

dissenting:

I agree with the majority’s opinion except for their treatment of the issues instruction. The court should have submitted an issues instruction to the jury, and under the circumstances, I would hold that the plaintiffs were denied their right to a fair trial by its failure to do so.

A party has the right to have the jury instructed on its theory of the case (Zueck v. City of Nokomis (1987), 160 Ill. App. 3d 140, 145, 513 N.E.2d 125, 128), and the circuit court, in the exercise of its discretion, should instruct the jury on all issues which it finds have been raised by the evidence presented (Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 310, 562 N.E.2d 282, 287).

The majority opinion includes excerpts from both of the plaintiffs’ tendered issues instructions. Basically, these instructions were refused either because they failed to state that the alleged conduct was in violation of a statute or because they included elements of the statute that had no application to the facts of the case. Defendant’s tendered issues instruction, which was also refused by the court, provided in pertinent part:

“Each plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:

(a) Failed to keep a proper lookout for pedestrians crossing the street;

(b) In violation of a statute, drove his vehicle at a speed which was greater than that which was reasonable and proper with regard to traffic conditions then and there present;

(c) In violation of a statute, failed to decrease his speed as may have been necessary to avoid colliding with any person on or entering the highway;

(d) In violation of a statute, failed to have his headlights on during the period from a half hour after sunset to a half hour before sunrise.”

This instruction was refused mainly because the defendant did not set forth specific allegations of negligence in his original affirmative defense, thereby precluding him from setting forth particular charges of contributory negligence in the jury instruction. Defendant inquired of the court whether an amendment of his affirmative defense would entitle him to submit his tendered issues instruction to the jury. The court vaguely responded, “I don’t want to rule on that here without seeing what it is — that would be handed up.”

At the instruction conference the court refused both parties’ tendered issues instructions, gave the parties leave to amend the instructions, and recessed the proceedings. Plaintiffs offered to come to court at 9 a.m. the following morning; however, the court instructed the parties to bring their amended jury instructions in at 9:30 a.m., just 15 minutes before closing arguments were to begin. At the 9:30 a.m. conference the next morning, defendant presented a motion for leave to amend his affirmative defense to specify the allegations of plaintiffs’ contributory negligence. The court allowed defendant’s motion to amend but still refused to accept the defendant’s issues instruction.

This is not a case where the parties did not even attempt to satisfy the court’s suggestion of what it would accept as a proper issues instruction. After the court rejected plaintiffs’ first tendered issues instruction because it failed to set forth the statutes defendant was alleged to have violated, the plaintiffs submitted an amended instruction, incorporating the language of the statutes which defendant was alleged to have violated. The court also refused this amended version. The defendant’s tendered instruction set forth the plaintiffs’ alleged theories of negligence and stated that such alleged conduct was a violation of statute. Defendant, in an attempt to cure the court’s earlier professed reasons for refusal, amended his affirmative defense. The court still refused to submit the issues instruction to the jury. Based on the circumstances, I believe the parties were improperly denied their right to have the jury properly instructed.

The jury was not fully instructed as to the plaintiffs’ claims. The submitted instructions did not apprise the jury of the defendant’s alleged failure to: (1) keep a proper lookout for pedestrians crossing the street; (2) decrease speed to avoid colliding with any person on or entering the highway; and (3) drive at a speed which was not in excess of the posted speed limit. Under the facts of this case, plaintiffs were prejudiced by the court’s failure to give an issues instruction. Therefore, I dissent.