Clarkson v. Wright , 121 Ill. App. 3d 230 ( 1984 )

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Peoria County entered upon the return of a jury verdict for the plaintiff-appellant, Larry Clarkson, and against the defendant-appellee, William Wright, for $3,620 with an additional finding of 50% comparative negligence on the part of Clarkson.

On February 28, 1980, Clarkson was driving his employer’s automobile north on Monroe Street in Peoria. As he was driving, he approached the intersection of Monroe and Hayward streets. Clarkson’s lane of traffic was not regulated by a traffic signal and was not required to stop. There was a stop sign on Hayward. Wright was driving a truck westbound on Hayward and stopped at the intersection. He pulled forward on to Monroe, saw Clarkson’s car coming towards him, and stopped while in Clarkson’s lane of traffic. Clarkson’s car then collided with Wright’s truck. The investigating police officer issued Wright a citation for failure to yield the right of way, to which the defendant subsequently pled guilty. Clarkson suffered various injuries as a result of the collision. He filed suit seeking damages for the injuries which he alleged were the result of the defendant’s negligence. Following a jury trial, defendant was found negligent. In addition the jury found the plaintiff to be 50% negligent and the jury award was therefore reduced by one half. On appeal, plaintiff raises two issues: (1) whether the trial court erred in refusing to give certain of plaintiff’s tendered jury instructions; and (2) whether the trial court erred in refusing to grant plaintiff’s motion for a new trial as to damages only or, in the alternative, a motion for a new trial as to all issues. We affirm.

At trial, plaintiff tendered three instructions, Nos. 27, 33, and 34, regarding the effect of the violation of a statute on the plaintiff’s theory of the case. All three instructions were rejected by the trial court. Plaintiff contends that failure to give any of these instructions constitutes reversible error. We disagree.

While plaintiff was entitled to give the jury instructions regarding the effect of a statutory violation, the instructions tendered were not applicable to the circumstances of the case. Instruction No. 27 was based on a statute concerning movement of vehicles after passing a yield right of way sign. Since the accident in this case occurred after the defendant passed a stop sign, this instruction was not relevant.

Instruction No. 33 dealt with an intersection not controlled by traffic signs. Since there was a stop sign in the case at bar, this instruction is also inapplicable. Inasmuch as these instructions were not applicable to the circumstances of the case, their presentation to the jury would have been confusing and would have introduced irrelevant issues into the case. We find no error in the trial court’s rejection of these instructions.

Plaintiff’s instruction No. 34 was also refused by the trial court, which instead issued defendant’s instruction No. 8 to the jury. The trial court’s reason for doing so was that, in its judgment, plaintiff’s instruction did not adequately instruct the jury on the issues of the case dealing with plaintiff’s negligence. It is within the trial court’s discretion to determine which instruction shall be given and the exercise of discretion will not be disturbed on review unless it has been clearly abused. (Schmidt v. Blackwell (1973), 15 Ill. App. 3d 190, 304 N.E.2d 113.) We see no such abuse of discretion here.

Plaintiff’s second issue is whether the trial court erred in refusing to grant plaintiff’s motion for a new trial on the issue of damages only or in the alternative, his motion for a new trial on all the issues. He bases his contention that the trial court erred in refusing to grant his motion on three arguments.

First, he contends that evidence concerning plaintiff’s failure to use a seat belt was improperly admitted. Evidence regarding the nonuse of a seat belt may be introduced for its relevance in mitigating damages, although it may not be introduced on the question of liability or fault. (Mount v. McClellan (1968), 91 Ill. App. 2d 1, 234 N.E.2d 329.) To lay a proper foundation for introducing this evidence, the defendant must establish (1) the availability of a seat belt and (2) a causal connection between the failure to use the seat belt and the injuries sustained. (Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 358 N.E.2d 1171.) Plaintiff contends neither requirement was met. We disagree.

With respect to the'availability of the seat belt, there was uncontested evidence that seat belts were installed in plaintiff’s car. However, plaintiff testified that on the last occasion on which he had attempted to use the seat belt prior to the collision, it would not work. Therefore, plaintiff argues, there was not an available seat belt. We believe plaintiff’s testimony was not sufficient to establish nonavailability of a seat belt. Failure of the seat belt to work at some time in the past is not sufficient to prove that on the day of the accident the seat belt did not work. Had the plaintiff established the defect in the seat belt and that he had not had a chance to remedy the problem, there might be a different result. Such is not the situation here, however. We do not know why the seat belt did not work in the past nor do we know it did not work on the day of the accident. We believe evidence of the installation of a seat belt is sufficient to establish the availability of the seat belt in the absence of countervailing evidence regarding nonworkability of the seat belt.

The requirement of proving a causal connection between the failure to use the seat belt and the injuries sustained was also met. The evidence deposition of Dr. Corley, a plastic and reconstructive surgeon, stated that seat belts were helpful in reducing the type of injuries plaintiff suffered. Dr. Van Etten, a seat-belt safety expert, testified that if plaintiff had been wearing a seat belt, he would not have sustained the injuries he did in the accident. This is sufficient evidence of causality. Since both requirements for laying a proper foundation were met, the evidence regarding nonuse of the seat belt was properly admitted.

Plaintiff’s second argument is that the court erred in refusing to give plaintiff’s instruction No. 32 to give the jury guidance on what effect was to be given to evidence introduced by defendant of prior and subsequent injuries suffered by plaintiff. We find no error here. Plaintiff’s proposed instruction covered the same matters already covered by other instructions. As a result, the trial court could properly refuse the instruction. Kofahl v. Delgado (1978), 63 Ill. App. 3d 622, 380 N.E.2d 407.

Plaintiff’s final argument is that the verdict as to damages is contrary to the manifest weight of the evidence. There was evidence of lost wages of $3,120 and medical bills of $3,897. The jury determined the damages to be $3,620. Plaintiff claims this verdict is not supported by the evidence and the determination is obviously inadequate. We disagree.

While plaintiff’s special damages are higher than the determination, there are other factors to be considered. First, there was evidence of nonuse of the seat belt. There was testimony that had the seat belt been used, plaintiff’s injuries would have been lessened. As discussed earlier, nonuse of a seat belt may be taken into account in mitigating damages. Second, there was evidence introduced regarding prior and subsequent injuries. This could also have affected the jury’s determination.

The amount of a verdict is largely discretionary with the jury and will not be disturbed unless it is against the manifest weight of the evidence. In view of the evidence in this case, we do not find the determination to be against the manifest weight of the evidence.

For the abovementioned reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT, J., concurs.