dissenting:
I respectfully dissent from the conclusion of the majority that judgment should be entered on the general verdict in favor of plaintiff notwithstanding the jury’s answer to a special interrogatory finding plaintiff guilty of contributory negligence. The majority finds that when all the evidence is viewed in its aspect most favorable to defendant, it so overwhelmingly favors plaintiff on the issue of contributory negligence that no contrary verdict could ever stand. I believe there was sufficient evidence to support the special interrogatory and answer, and thus the trial court properly entered judgment in favor of defendant in accordance with the special finding.
Where an answer to a special interrogatory is inconsistent with the general verdict, the special finding of fact controls the general verdict. (Ill. Rev. Stat. 1977, ch. 110, par. 65; Zygadlo v. McCarthy (1974), 17 Ill. App. 3d 454, 308 N.E.2d 167.) The trial court is bound by the jury’s answer to the special interrogatory unless it is not supported by substantial evidence or unless the determination is contrary to the manifest weight of the evidence. (Mathis v. Burlington Northern, Inc. (1978), 67 Ill. App. 3d 1009, 385 N.E.2d 780; Zygadlo v. McCarthy.) On review, a court should not disturb a judgment entered on an answer to a special interrogatory unless the special finding is “palpably erroneous and wholly unwarranted from the manifest weight of the evidence.” (Sandquist v. Kefalopoulos (1977), 49 Ill. App. 3d 456, 459, 364 N.E.2d 475.) Courts are not free to reweigh the evidence and set aside a jury verdict merely because a jury could have reached contrary conclusions or because judges believe that other results are more reasonable. Larson v. Fell (1965), 55 Ill. App. 2d 418, 204 N.E.2d 475; see also DePaepe v. Walter (1979), 68 Ill. App. 3d 757, 386 N.E.2d 875.
There were no traffic signals at the site of the accident. The Illinois Vehicle Code in effect at the time of the occurrence provided, in relevant part, as follows:
“When traffic control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk ° ° ° .” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 95½, par. 11—1002(a).)
As the majority correctly indicates, this statutory provision giving a pedestrian the right-of-way does not absolve the pedestrian from the duty to use ordinary care for his own safety in crossing at a crosswalk. (Sandquist v. Kefalopoulos.) A pedestrian does not have an absolute right-of-way and in crossing a street, must make reasonable use of all his senses to observe impending danger. Moran v. Gatz (1945), 390 Ill. 478, 62 N.E.2d 443; Larson v. Fell.
Contrary to the majority’s position, I believe there was ample evidence from which a jury could decide that plaintiff saw or should have seen the impending danger of defendant’s advancing vehicle in time to avoid the collision. The accident occurred on a dark evening, at a poorly lighted “T” intersection at Rohlwing and Campbell streets. Rohlwing, which runs north and south, is the through street; Campbell, which runs east and west, ends at Rohlwing. Plaintiff testified that upon arriving at the corner, he waited for several automobiles traveling west on Campbell to turn right onto Rohlwing. He then looked to his left (south) and saw defendant’s automobile one-half to one block away. Plaintiff began to cross Rohlwing, and did not look again to his left until reaching the middle of the roadway. At that time, plaintiff saw defendant’s automobile very close to him, and “lunged” in an effort to avoid the vehicle. Plaintiff made no judgment as to the speed of defendant’s vehicle, but he knew that the speed limit on Rohlwing was 30 m.p.h. and that Rohlwing traffic did not have a stop sign at Campbell.
Defendant testified that he was driving his automobile north on Rohlwing at a speed of 25 to 30 m.p.h. with his headlights shining. He first saw plaintiff when the latter was standing 15 to 20 feet from the automobile. One eyewitness testified that she observed plaintiff slowly running across the street prior to the accident.
Plaintiff also stated that he entered the roadway within a painted crosswalk. A photograph of the site, however, revealed no crosswalk lines. Moreover, defendant and another witness both testified that there were no painted crosswalk lines.
Another portion of plaintiff’s testimony was refuted. Plaintiff recounted that when he was approximately 1/2 blocks from Rohlwing, he placed the walkie-talkie unit he was testing into his rear pocket and did not later remove it. Two eyewitnesses, however, testified that they observed plaintiff near the comer of Rohlwing and Campbell carrying a walkie-talkie device with a long raised antenna. One witness related that plaintiff was standing at the edge of the roadway holding the unit towards his head, and that it appeared he was talking to someone. Defendant also saw plaintiff holding something in his right hand just before the occurrence.
The evidence adduced raised an issue of fact as to whether plaintiff kept an adequate lookout or made reasonable use of his senses to observe the imminent danger created by the approaching vehicle. The jury was entitled to conclude that by continuing to cross the poorly lighted intersection without again looking at the vehicle’s position or judging its speed, plaintiff was not in the exercise of due care for his own safety. Moreover, based on the disputed evidence, the jury could have concluded that plaintiff’s attention was distracted by his use of the walkietalkie. Whether a pedestrian has been guilty of contributory negligence is a question which is preeminently for the jury’s consideration. (Moran v. Gatz.) As reasonable persons might differ on the inferences to be drawn from the evidence presented here, the issue whether plaintiff exercised due care was properly one for the jury’s determination. See Drzewiecki v. McCaskill (1976), 41 Ill. App. 3d 627, 354 N.E.2d 144.
The majority suggests that once a pedestrian begins to cross the street after having looked for traffic he has no duty to keep a constant lookout for moving vehicles, and further, has a right to assume vehicles will yield the right-of-way and will be operated with reasonable care to avoid striking him. These principles, however, were enunciated in situations in which a pedestrian entered the intersection, within or near a marked crosswalk, with a green light in his favor. (See Huston v. Chicago Transit Authority (1976), 35 Ill. App. 3d 428, 342 N.E.2d 190; Fox v. Calhoun (1975), 34 Ill. App. 3d 336, 340 N.E.2d 125; Petersen v. General Rug & Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 77 N.E.2d 58.) In the present case, the intersection at which the accident occurred had no traffic light and no painted crosswalk marks. Moreover, there was no evidence introduced to demonstrate clearly that plaintiff was even within a crosswalk. If plaintiff had been within a crosswalk, that would be evidence of due care, but would not be conclusive on the issue of his freedom from contributory negligence. (Larson v. Fell.) Under these facts and circumstances, whether plaintiff’s conduct constituted contributory negligence was properly a question for the jury’s determination.
I am not persuaded that the jury’s answer to the special interrogatory was not supported by substantial evidence or was against the manifest weight of the evidence. Further, I cannot say that the evidence so overwhelmingly favors plaintiff on the issue of contributory negligence that no contrary verdict could ever stand. Accordingly, I believe the trial court properly entered judgment for defendant in accordance with the special interrogatory.
Turning to an issue not addressed by the parties, I must also respectfully dissent from Justice Rizzi’s conclusion that section 65 of the Civil Practice Act is unconstitutional as violative of the constitutional provision of separation of powers. I do not agree that the legislative enactment constitutes an unconstitutional encroachment, upon the power of the judiciary.
In general, it is the duty of a court to sustain legislation wherever possible and to resolve all doubts in favor of its validity. (Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 105 N.E.2d 713.) Of course, a court has the duty to protect its judicial powers from encroachment by legislative enactments, and thus preserve an independent judicial department. (Agran v. Checker Taxi Co.; People v. Brumfield (1977), 51 Ill. App. 3d 637, 366 N.E.2d 1130.) Yet the framers of the Illinois Constitution of 1970 and our supreme court have recognized the existence of concurrent judicial and legislative rule-making authority. (See People v. Capoldi (1967), 37 Ill. 2d 11, 225 N.E.2d 634; People v. Brumfield.) And our supreme court has had occasion to invalidate some legislative enactments which were deemed to encroach upon the exercise of inherent judicial power. In Agran v. Checker Taxi Co., the challenged statute prohibited ex parte action to dismiss a case for want of prosecution until every attorney of record had been notified by the clerk of the court at least five days prior to the entry of such order. In finding the statute unconstitutional, the court reasoned that the rule infringed upon the inherent judicial power to render decisions inasmuch as it restricted the court’s power to render a judgment of dismissal. In People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495, the supreme court invalidated a legislative enactment governing admission to bail which was in conflict with a supreme court rule. The enactment was held unconstitutional because it intruded upon the power to establish rules regulating appeals. In People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602, the supreme court addressed the issue whether its rule or a conflicting statutory provision regulated the conduct of voir dire examination of prospective jurors. The court found the statute in question to be void, reasoning that the supreme court was vested with general administrative and supervisory authority over courts, and that the statute infringed upon the judiciary’s powers.
Section 65 of the Civil Practice Act, however, does not regulate a matter of mere court procedure, administration, or efficiency. Likewise, there is no conflicting supreme court rule which must be reconciled with section 65. Section 65 reads as follows:
“Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.” Ill. Rev. Stat. 1977, ch. 110, par. 65.
Section 65 relates principally to a litigant’s substantive right to have questions of ultimate fact determined by a jury. The function of special interrogatories is to require the jury’s determination as to one or more specific issues of ultimate fact and to operate as a check upon the jury’s deliberations. In essence, special interrogatories are used to test the general verdict against the jury’s conclusions as to the ultimate controlling facts. Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 222 N.E.2d 468.
Perhaps most importantly, section 65 does not restrict the court’s inherent authority to render judgment. I do not believe that section 65 wholly negates the court’s power to determine whether the general verdict or special finding should prevail. While the statute authorizes the entry of judgment upon the special finding, it is couched in permissive language. (See Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 226 N.E.2d 16.) Judicial construction of this statute has established that the special finding of fact has no binding effect where the trial court concludes it is unsupported by substantial evidence or is contrary to the manifest weight of the evidence. (Zygadlo v. McCarthy (1974), 17 Ill. App. 3d 454, 308 N.E.2d 167.) This power to review the special finding is analogous to the court’s function in determining whether a general verdict is against the manifest weight of the evidence. Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191.
Justice Rizzi correctly indicates that the power of the court to submit and deal with special interrogatories evolved from the common law. In fact, the generally prevailing rule is that, even in the absence of an express statutory provision, an inconsistent special finding controls a general verdict. (See Borries v. Z. Frank, Inc.) The rationale underlying such rule is that the jury is presumed to understand more clearly a particularized special interrogatory on which its attention has been focused than a composite of all questions in the case. (Kirby v. Swedberg (1969), 117 Ill. App. 2d 217, 253 N.E.2d 699.) In essence, section 65 merely codifies a practice which existed at common law. Absent section 65 or a supreme court rule, common law would still permit a special finding to prevail. Consequently, as Justice Simon points out, even if this statutory provision is held to be unconstitutional, a court would still be forced to deal with the problem of a special finding of fact which is inconsistent with the general verdict.
For the foregoing reasons, I would hold that section 65 does not impermissibly encroach upon inherent judicial power in violation of the separation-of-powers doctrine, and therefore is constitutional.