dissenting:
Because of the prejudicial trial errors, I am of the opinion that this case should be remanded for a new trial.
The evidence clearly shows that the deceased, a nine-year-old boy, rode his bicycle from the sidewalk into Western Avenue at a crosswalk. The signal light was green in his favor. He was suddenly confronted with impending danger and was struck by the defendants’ trailer-truck which made a turn from Twenty-second Street into Western Avenue and into the boy’s path. This action was brought for the benefit of the boy’s survivors, his parents and a younger sister.
At the conclusion of the plaintiff’s case and over his objection, the court granted the defendants’ motion to strike two parts of the complaint which would have put in issue the defendants’ violation of 111 Rev Stats 1957, c 95%, § 162(a) providing that no vehicle may be turned from a direct course upon a highway unless such, turn can be made with reasonable safety and which would have put in issue the defendants’ negligence in failing to keep a reasonably careful lookout. Moreover, the court, over plaintiff’s objection, instructed the jury that a Chicago municipal ordinance required a bicycle to be provided with certain equipment and that the violation of the ordinance by the parents of the boy would bar their recovery. I believe all these actions were not warranted under the evidence and constituted reversible error.
In order to justify the giving of an instruction, there must be some evidence in the record to support the theory set out in the instruction. Biggerstaff v. New York, C. & St. L. R. Co., 13 Ill App2d 85, 141 NE2d 72. Instructions not sustained by the evidence should not be given and requests therefor are properly refused. Down v. Comstock, 318 Ill 445, 149 NE 507; Ohlweiler v. Central Engineering Co., 348 Ill App 246, 109 NE2d 232. It is reversible error for a trial court to give instructions setting forth ordinances or statutes, when the ordinances or statutes do not relate to an issue supported by evidence in the case, or to give an instruction containing an entire ordinance or statute when a portion of the ordinances does not relate to an issue raised by the evidence in the case. Jackson v. Hursey, 1 Ill App2d 598, 118 NE 2d 348; Lobstein v. Sajatovich, 111 Ill App 654.
A review of the record indicates that there was no evidence of the violation of the ordinances which were the basis for the instructions given by the trial court. The instruction first set forth that part of the ordinance which provides that parents shall not authorize or knowingly permit their children to violate any of the provisions applicable to bicycles. There was no evidence offered from which the jury could conclude that the parents had authorized or permitted the boy to violate the provisions of the ordinances. The instruction included sections of the ordinance requiring that bicycles in use at nighttime be equipped with head lamps and rear red reflectors; and that bicycles be equipped with a bell or other device giving a signal audible at a distance of at least 100 feet; and that bicycles be equipped with an adequate brake.
No testimony was given by any witness regarding the lack of equipment on the bicycle. A lieutenant of the Chicago Fire Department who responded to the call testified that he “unwound the bicycle from the boy’s legs” and “threw it over the curb.” On cross-examination he was shown one of the plaintiff’s exhibits, a photograph of the bicycle, and was asked “I take it there’s no light on the bicycle on the front?” He answered, “That I didn’t pay any attention to.” On cross-examination, the father of the boy was asked, “With regard to the bicycle that your son had, did it have any light on it?” Objection to the question was sustained. The photograph of the bicycle alone was insufficient to support this critical instruction without any further proof. It was also error to give this instruction because the contributory negligence of the parents was not made an issue in the case either by the pleadings or by any direct evidence.
In my judgment, the trial court, in striking two parts of the plaintiff’s complaint, acted to strip the complaint of the main theory of the case and this act was equivalent to directing a verdict for the defendants and improperly taking the issues from the jury.
The evidence establishes that a large trailer-truck, which had been travelling west on Twenty-second Street in the inner lane of traffic, began a wide right turn into Western Avenue and into the pedestrian walk which crossed Western Avenue; the driver made this turn without sounding his horn. Under these circumstances the trial court erred in striking plaintiff’s complaint which would have placed in issue whether the defendants had violated § 65(a) of Article Yin of the Uniform Act Regulating Traffic on Highways which provides:
No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement. (Ill Rev Stats 1957, c 95%, § 162(a).)
I believe that there were sufficient facts in the record concerning the dimensions of the truck and of the intersection, the speed and conduct of the boy on the bicycle and the speed and manner in which the truck made its turn, from which the jury could reasonably have found that the truck driver knew or should have known that the boy was proceeding across Western Avenue, and that the movement of the truck would mislead the boy as to the direction it would take.
Two cases involving turning vehicles are instructive. In Saunders v. Schultz, 22 Ill App2d 402, 161 NE2d 129, a motor cyclist was killed when he struck the right rear of a farm truck. The cyclist and the truck were approaching each other on the same highway when the truck turned across the cyclist’s path and failed to clear the cyclist’s lane of traffic. The court said at page 419:
It is undisputed that decedent was at all times proceeding in his proper traffic lane. If he saw defendant’s truck before defendant started to make his left turn he had a right to assume that the truck would continue in its lane of traffic and not make a left turn across his traffic lane. Whether he, under all the circumstances disclosed by the evidence, was in the exercise of due care and whether defendant was guilty of negligence upon the occasion in question were questions of fact for the jury to pass upon and were submitted to the jury under proper instructions. (Emphasis supplied.)
In Johnson v. Railway Express Agency, 131 F2d 1009 (7th Cir), the trial court submitted to the jury the question of defendant’s violation of Section 69 of the Uniform Act Regulating Traffic on Highways which then provided:
Any driver of a vehicle approaching an intersection with the intent to make a left turn shall do so with caution and with due regard for traffic approaching from the opposite direction and shall not make such left turn until he can do so with safety. (Ill Rev Stats 1939, c 95%, § 166.)
In that case, the plaintiff, a boy of thirteen years of age, riding his bicycle in a westerly direction near the curb at about ten o’clock at night in late April, approached an intersection where he saw the defendant’s truck proceeding east on the same street and approaching the same intersection at about the same time. The boy, observing the truck beginning to make a left turn, attempted to pass it on the side away from the direction in which the truck was turning. On so doing, the boy met oncoming traffic and therefor cut back and collided with the back end of the truck. The truck driver testified that in making the turn he stopped at the center of the street to permit the traffic, which was behind him and which the boy met, to pass him and that then he proceeded to turn and that, until the collision, he did not see the boy. The court said that though the boy might have stopped his bicycle in time to have avoided the collision, it would not be helpful to speculate on what happened. The jury returned a verdict for the plaintiff, and, on appeal, the court discussed the propriety of the trial court’s submission to the jury of the issue of the violation of the statute which is somewhat similar to the statute in the instant case. The court stated at page 1012:
If, by the exercise of ordinary care, however, he could have discovered plaintiff’s approach, he was charged with the duty not to make “such left hand turn until he can do so with safety.” We think a jury question was presented as to whether defendant’s driver should have been aware of plaintiff’s approach, and whether the blocking of plaintiff’s passage was the proximate cause of the collision.
The facts warranting submission of the issue of violation of the statute in the case at bar are stronger than those in the Johnson case. Here a boy of younger age was riding his bicycle from the sidewalk into the crosswalk, a proper place for pedestrians to cross the street, and the traffic light was in his favor.
The two principal cases on which the defendant relies are inapposite here. Neither Scott v. Marshall, 105 NE2d 281 (Ohio App) nor Mumford v. United States, 150 F Supp 63 (D Md) involved a collision with a vehicle which turned from a direct course of travel into a traffic lane or crosswalk where the presence of other vehicles or pedestrians was properly to be expected.
The second part of the complaint, which the court erroneously struck, would have put in issue the defendants’ negligence in failing to keep a reasonably careful lookout to the right as he made his turn. I believe that the jury could well have reached the conclusion that, had the driver been keeping a reasonably careful lookout before initiating and completing his turn into the crosswalk, he would have seen the boy on the sidewalk about to enter the crosswalk. A similar case is Reinmueller v. Chicago Motor Coach Co., 341 Ill App 178, 93 NE2d 120. In that case the decedent alighted from the defendant’s bus, proceeded to a crosswalk and walked into the side of the bus, which, after stopping to discharge passengers, made a sweeping right turn. The bus driver was unaware of the occurrence at the time it happened although his view to the right was unblocked. The Appellate Court affirmed a judgment for the plaintiff saying at page 183:
. . . [T]he fact that the bus made a wide sweeping turn from a southwesterly direction to a northerly direction and Schrubbe’s [the bus driver’s] vision being unobscured raises a question of fact as to whether or not in the exercise of due care Schrubbe should have seen the plaintiff before the accident.
In the instant case the truck driver’s view of the walk and crosswalk was unobstructed. He knew that the traffic light was green for persons crossing Western Avenue and should have anticipated persons moving across the street at the crosswalk with the light in their favor. The issue of a reasonably proper lookout was all the more necessary because there is evidence in the record from which the jury could reasonably conclude that the rear view mirror on the truck was so adjusted that the driver could not adequately observe conditions along tbe side of tbe equipment before and when about to make and while making the turn and also because it is undisputed that the driver was without a helper on this long trailer attachment.
Because the trial court erred in the respects mentioned above and because, absent these errors, it is reasonable to believe that a new trial could result in a verdict for the plaintiff, this case should be reversed and remanded because of prejudicial error.