delivered the opinion of the court:
Plaintiff-Appellant, Marilyn Schmidt, executrix of the estate of David Schmidt and mother and next friend of Douglas Schmidt, a minor, commenced this action in the Circuit Court of Peoria County to recover damages for the wrongful death of David Schmidt and for personal injuries sustained by Douglas Schmidt resulting from the alleged negligence of Barry Blackwell, Carl James and Rogers Cartage Company, Appellee, all original defendants in the present action. Prior to trial, plaintiff’s motion to dismiss defendant Blackwell was granted, and at the close of plaintiffs evidence, the court granted plaintiff’s motion to dismiss defendant Carl James. The jury returned a verdict in favor of defendant Rogers Cartage Company, the court entered judgment thereon, and it is from this judgment plaintiff appeals.
The action arose as a result of a collision between an automobile driven by the deceased, David Schmidt and an automobile driven by Blackwell. The Schmidt automobile was traveling in an easterly direction on Route 150, a two lane highway about two miles west of Kickapoo. The automobile operated by Blackwell with six passengers was traveling in a westerly direction on the same highway. Blackwell reached a downhill slope which was broken midway by what the parties call a crest, making it impossible to see the bottom of the hill. The passengers in his vehicle had complained of his fast driving after leaving Kickapoo. On the downhill slope he approached the track driven by James, an employee of defendant, Rogers Cartage Company, also traveling west in the westbound lane. In spite of a no passing zone, Blackwell drove his car into the eastbound lane in order to pass the truck. The Schmidt automobile was in a blindspot as it proceeded easterly up the hill. James had seen the Schmidt car shortly before it became obscured by the crest of the hill. When Schmidt suddenly saw Blackwell’s car he applied his brakes and veered toward the shoulder of his lane; nevertheless, the left front side of the Schmidt car collided with the front of Blackwell’s car. David Schmidt died in the car shortly thereafter.
According to plaintiff’s complaint, Rogers Cartage by and through its agent and employee, Carl James, negligently operated the truck and such conduct was a proximate cause of damage suffered by plaintiff. It is alleged the track prevented the Blackwell vehicle from passing it successfully and from returning to the westbound lane. Specifically the complaint alleges the track was driven at a speed in excess of the speed limit, failed to decrease speed at a hillcrest and increased speed while being passed by a car to the left, all in violation of the Motor Vehicle Code. Ill. Rev. Stat. 1971, ch. 95½, par. 11 — 601 and par. 11 — 703.
At the trial conflicting evidence was presented in reference to the speed of the track and also in reference to the position of the track in relation to the point of impact, although it was undisputed tiiat the cars collided in the eastbound lane somewhere behind the cab of the track. Defendant rested at the close of plaintiff’s evidence having presented no evidence in his own behalf, at which time the court denied plaintiff’s motion for a directed verdict on the issue of liability.
On this appeal plaintiff”s first contention is the trial court erred in refusing to direct a verdict for plaintiff and in failing to grant his motion for judgment notwithstanding the verdict, citing the standard set forth in Pedrick v. Peoria & Eastern Railroad Co.,
The evidence relating to the speed of the track was based on speculation with most of plaintiff’s witnesses not sure if the truck was moving faster than fifty miles per hour, the maximum speed limit for the truck. Blackwell testified when he passed the truck it increased speed one or two. miles per hour. Also, there is no proof that had the truck been going slower, the Blackwell car could have returned to the westbound lane before the impact. The two automobiles were visible to each other for approximately only two seconds before the impact occurred. One witness, who was a passenger in the Blackwell automobile, said the truck didn’t alter its course because there was no time. All the witnesses appear to agree that it all happened very fast, that is, within a matter of seconds.
The evidence concerning where the collision occurred in relation to the truck is conflicting since the truck was not struck by either automobile nor did it come to a stop until it was 300 to 400 feet down the road. Due to the uncontradicted testimony that Blackwell was passing the truck in a no passing zone in the eastbound lane and did not see the Schmidt vehicle until two seconds before the collision, it is possible that a jury could conclude no matter what the truck had done, the collision would nevertheless have occurred. Having reviewed this evidence in its aspect most favorable to defendant, we are of the opinion that a directed verdict was properly refused since it cannot be said that the evidence so overwhelmingly favors plaintiff that no contrary verdict could ever stand.
Plaintiff next assigns error to instructing the jury on contributory negligence. The instructions submitted were defendant’s instructions Number 4 and Number 8 patterned from IPI 2d 10.03 and IPI 2d 11.01, reading as follows:
“It was the duty of the plaintiffs, before and at the time of the occurrence, to use ordinary care for their own safety. That means it was the duty of the plaintiffs to be free from contributory negligence.
When I use the expression ‘contributory negligence’, I mean negligence on the part of the plaintiffs’ decedent that proxiniately contributed to cause the alleged injury.”
Plaintiff’s objection was that there was no evidence of contributory negligence. While we agree that no evidence of failure of decedent or of Douglas Schmidt to exercise ordinary care appeared in the record, we are of the opinion giving the instructions was not error.
In Illinois one of the requisites in a negligence action is for plaintiff to allege and prove his freedom from contributory negligence. (See I.L.P. Negligence, sec. 184, 188.) The instructions in a negligence action should include the matter of plaintiff’s contributory negligence. (I.L.P. Negligence, sec. 284.) Whenever plaintiff presents evidence which tends to show plaintiff has exercised due care, plaintiffs due care becomes a question of fact for the jury. (Genck v. McGeath,
Complaint is also made of an instruction given on defendant’s behalf relating to concurrent negligence and patterned from IPI2d 12.04. His specific objection is to the second paragraph of the instruction which reads as follows:
“However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.”
The court refused to give an instruction tendered by plaintiff also taken from IPI2d 12.04, but with the second paragraph deleted. In the “Notes on Use” in IPI2d foHowing the instruction, it is stated “The second paragraph should be used only where there is evidence tending to show that the. sole proximate cause of the occurrence was the conduct of a third person.” Plaintiff contends since defendant failed to present evidence or call witnesses on bis own behalf, there was no evidence tending to show a third person was the sole proximate cause of plaintiff’s damages. In spite of no evidence presented by defendant, we believe from the testimony presented by plaintiff’s witnesses, there was evidence tending to show the sole proximate cause was the conduct of Blackwell. From this evidence the jury might have found no negligence on the part of defendant or if defendant was negligent, that such negligence was not a proximate cause of the damage. In such case the jury could have found Blackwell to be the sole proximate cause (as it did in a special interrogatory). The instruction is therefore proper since it is applicable to this case.
Another alleged instruction error of which plaintiff complains was the giving of defendant’s instruction Number 13 (IPI2d 50.11) and the refusal of plaintiff’s instruction Number 25 (IPI2d 50.02). The instruction submitted to the jury read as follows:
“The defendant is a corporation and can act through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant corporation.”
Plaintiff’s refused instruction read:
“Carl James was the agent of the defendant Rogers Cartage Company a corporation, at and before the time of this occurrence. Therefore, any act or omission of the agent at that time was in law the act or omission of the defendant Rogers Cartage Company, a corporation.”
The objection in the trial court to plaintiff s instruction was that the word “employee” was a better description of James than was the word “agent”. Plaintiffs contention on appeal is that defendant’s instruction did not stress the point that Rogers Cartage Company was acting through James at the time of the occurrence, thereby confusing the jury. We do not believe the instruction tends to confuse the jury and because the instructions are so similar, either one of them would be suitable. It is within the trial court’s discretion to determine the form in which an instruction shall be given. (Handell v. Chicago Transit Authority,
The final assignment of error pertaining to instructions concerns the issue instruction. Plaintiffs issue instruction refused by the trial court, itemized nine separate acts of negligence claiming defendant committed one or more of them. Six of the items related to the speed of the truck. Each of the nine acts of alleged negligence were stated twice within the single instruction, once in relation to injuries sustained by Douglas Schmidt and then again repeated as to the wrongful death of David Schmidt. The instruction tendered by defendant was given by the court and specified the alleged negligence to be in one or more of the following respects:
“A. In driving at a speed which was greater than was reasonable and proper with regard to traffic conditions and the use of the highway in violation of a certain statute of the State of Illinois;
B. In the manner in which it operated its truck in view of conditions then prevailing.”
Plaintiff claims that each alleged statutory violation must be specified in the issue instruction even though other instructions may have covered the point. The plaintiff tendered instructions which the court submitted to the jury setting forth the Illinois Statutes regarding maximum speed limit, speed while being passed when approaching a hillcrest and speed when a hazard exists and when necessary to avoid a collision. The instruction reciting the statutes were patterned from IPI2d 60.01 and instructed the jury to consider a violation of a statute, if such violation is foimd, together with all other evidence to determine whether a party was negligent.
While we believe defendant’s given issue instruction is not as specific as it might be, plaintiff’s refused issue instruction was both verbose and repetitious. The criterion used by the Illinois courts in reference to the propriety of submitted instructions is whether the jury was fairly, fully and comprehensively informed on the relevant principles, considering the instructions in their entirety. (Saunders v. Schultz,
Plaintiff’s next contention is the trial court erred in refusing to admit into evidence an exhibit offered by plaintiff depicting a section of Route 150 where the collision occurred. The basis of the court’s ruling was that the vertical curves used in the highway profile were distorted. The vertical curves were drawn at a scale of 10 to 1 as compared to horizontal curves. It is argued by plaintiff that since it is normal engineering practice in Illinois to distort vertical curves, it was an abuse of the trial court’s discretion to refuse to admit the exhibit. It is noted in the record that the trial judge stated although engineers may find the profile useful, it would be deceptive to a jury or any lay person not trained to make adjustments in scale; and therefore its use would be prejudicial to defendant. There are other means of testifying which would portray sight distances to the jury which was the purpose for which the exhibit was offered. In view of the rule that the court has considerable discretion in admission of demonstrative evidence (Behles v. Chicago Transit Authority,
Another assignment of error asserted by plaintiff relates to two evidence depositions, the deponents being two of the passengers in the Blackwell automobile at the time of the collision. Plaintiff introduced testimony of both witnesses by reading three isolated questions from the evidence depositions. Reading from one deposition the witness was asked, “How much time elapsed from the time you first saw the headlights of the oncoming Schmidt automobile to the time you made your dive for your buddy’s lap?” and he answered, “approximately three seconds”. This question was the only one read by plaintiff from that deposition. The two questions read from the other evidence deposition concerned an estimate of the speed of the truck. The questions do not make reference to a particular truck nor to a particular point of time. Pursuant to Supreme Court Rule 212(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 212(c)) the trial court required plaintiff to read the remainder of the deposition considering such reading would be in fairness in order to place the questions in context and to allow the jury to judge the credibility of the witnesses and their ability to observe. Plaintiff’s objection is that the portions of the depositions which they wished to emphasize were diluted by introducing the remainder of the depositions. We have examined the one case cited by plaintiff on this point but find it to be a case where a discovery deposition was used for the purpose of impeaching a witness. (Schmitt v. Chicago Transit Authority, 34 Ill.App. 2d 67,
Finally, plaintiff contends he was prejudiced by the court’s limitation of his closing argument to 40 minutes. The main thrust of his argument is more time was needed because of the number of witnesses called by plaintiff, although he also claims the issues were complicated. The rule in Illinois is the trial judge may exercise his discretion in limiting oral arguments to the jury. (Christiansen v. William Graver Tank Works,
Other errors are charged by plaintiff regarding refusal to admit certain testimony by plaintiff’s witnesses and alleged prejudicial comments from the bench. We are of the opinion the court did not err in respect to these matters and offer no further discussion thereon for to do so would unnecessarily prolong the opinion.
Accordingly, the judgment of the Circuit Court of Peoria County is affirmed.
Judgment affirmed.
DIXON and SCOTT, JJ., concur.