Appeal from the Circuit Court of Cook county; the Hon. M.J.
SCHULTZ, Judge, presiding. Judgment reversed and cause remanded
for a new trial.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 1, 1955.
This is an action brought by plaintiff, John Stone, against the defendant, Warehouse & Terminal Cartage Company, a corporation, growing out of a collision between defendant's motor truck, driven by its employee, and an automobile driven by plaintiff, at or near the intersection of Hubbard and Ada streets in Chicago. The plaintiff alleged injuries and the negligence of the defendant, all of which was denied by the defendant. The jury found for the defendant. The court overruled a motion for new trial and entered judgment accordingly, from which judgment this appeal is taken.
The plaintiff contends (1) that the evidence is in conflict and that the court erred in permitting the defendant's counsel, under the guise of refreshing a witness' recollection, to prove on cross-examination the contents of a police report, and (2) that the court erred in giving to the jury, at the defendant's instance, a large number of instructions peremptory in form.
At the trial of the case the plaintiff, on direct examination, testified that right after the accident, after he had been out of the car for about five minutes, his stomach was numb, he had a headache and suddenly started getting pains in his back; that he got the pains in his stomach after the police came and took the report. On cross-examination he testified that at the scene of the accident he had told the police how it happened and told them about his injuries; that he told them he was going to the hospital; that he did not know whether the police made a report on the injuries or whether they put down what he told them; that he did not remember whether they asked him questions about distances and speed. Plaintiff then offered the police officer who had made out the police report. The officer testified that he had no independent recollection of the accident; that he made his report and record in accordance with his duty; that he remembered nothing about the occurrence, the vehicles, any conversations that took place, or whether anyone was injured. The record of the Chicago Police Department was presented to him and he identified it and stated that it was made at the time of the accident and is in his handwriting.
The defendant then cross-examined the police officer in great detail with reference to his recollection of the incident. The report was shown to him and he stated that it did not refresh his recollection. He then stated it did refresh his recollection as to whether either driver was injured in the accident, and that "according to my accident report there were no injuries at all. If I made this report I must have talked to the drivers of the two vehicles and asked them whether or not they were injured. . . . In this particular case I do not remember, but that is my usual procedure. If Plaintiff told me that he was injured I would have made a notation to that effect on this accident report. I did not make such a notation." He also stated that he had no independent recollection as to whether he asked the plaintiff his estimated speed at the time of the accident and that the report did not refresh his recollection, though it indicates that the question was asked. He then testified from the report as to the speed of plaintiff's car at the time of the accident, and that according to his report the plaintiff had first noticed the danger at ten feet. He stated that the report form has a space to indicate injured persons and all details as to the injuries, which space was not filled in. All of this evidence was introduced over the objection of the plaintiff.
From the record it appears that there were only two eyewitnesses who testified to the occurrence, the plaintiff and the defendant's driver. There were no stop signs at the intersection where the collision occurred. The testimony was in sharp conflict, as to the speed and the relative positions of the vehicles of both plaintiff and the defendant at the time when they approached and entered the intersection. The defendant's vehicle was approaching the intersection from the right of the plaintiff. The police report was marked as defendant's exhibit No. 1 for identification, but was not offered nor received in evidence.
The defendant argues that, because the plaintiff called the police officer as his witness, the mere mention of the report by him might create an inference in the minds of the jurors that the report would support the plaintiff's case. The principal evidence which was elicited from the plaintiff as to the statements which he made to the police officers at the time of the occurrence was brought out by the defendant on cross-examination. On direct examination, with respect to his contact with the police, plaintiff's only statements were that he had told the defendant's driver that he was going to call the police, and that after the officers came and took the report he got pains in his stomach and he told them he was going to the hospital. All further evidence as to plaintiff's conversations with the police was brought out on cross-examination.
Under the circumstances in the case, the plaintiff called the police officer to rebut the possible unfavorable inference that the jury might draw if the police officer was not called. In McCormick on Evidence, Sec. 249, it is said:
"When it would be natural under the circumstances for a party to call a particular witness . . . his adversary may use this failure as the basis for invoking an adverse inference. . . .
"Most of the controversy arises in respect to the failure to call a witness. It is generally agreed that when a potential witness is available, and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference arises that it would have been unfavorable.
"It is often said that if the witness is `equally accessible' to both parties, no inference springs from the failure of either to call him. This can hardly be accurate, as the inference is frequently allowed when the witness could easily be called or subpenaed by either party. What is probably meant is that when so far as appears the witness would be as likely to be favorable to one party as the other, there will be no inference. But even here, it seems that equality of favor is nearly always debatable, and that though the judge thinks the witness would be as likely to favor one party as the other, he should permit either party to argue the inference against the adversary. At least, it would appear in this supposed case of `equal favor,' if the witness's knowledge is directed toward a particular issue, that then the argument should be available against the party who has the burden of persuasion on that issue." (Citing Deaver v. St. Louis Public Service Co. (Mo. App.), 199 S.W.2d 83.)
If the evidence of the police officer on direct examination, sparse as it was and which was admitted without objection, had been improper, the defendant could have objected and moved that it be stricken. No such action was taken. The defendant by his detailed cross-examination concerning the report brought before the jury the contents of the document which itself could not properly be admitted in evidence. The trial court erred in permitting such cross-examination.
The defendant relies on the case of Rzeszewski v. Barth, 324 Ill. App. 345, in which case the plaintiff complained that the defendant's counsel, on cross-examination of the plaintiff, asked about a hearing before a justice of the peace trying the driver of the third car involved in a collision between plaintiff and defendant. On direct examination the plaintiff had there stated that he had signed something but he had not appeared at a hearing. The court held that under those circumstances it was competent ...