Appeal from the Circuit Court of Winnebago county; the Hon.
ARTHUR V. ESSINGTON, Judge, presiding. Reversed and remanded.
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment of the Circuit Court of Winnebago County, Illinois, in the sum of Two Thousand Two Hundred Dollars ($2,200) entered for the plaintiff on a verdict returned by a jury. The suit was one for personal injuries and property damage arising from an intersection collision.
The defendant urges upon this court two grounds for reversal: first, the admission of certain evidence, and second, the giving of Plaintiff's Instruction No. 6.
We shall limit our examination of the record to a recitation of those facts in evidence essential to an understanding of the questions presented for review. Plaintiff was driving her automobile in a southerly direction on Wyman Street in the City of Rockford, Illinois, near its intersection with Jefferson Street, a one-way street for westbound traffic. Wyman Street is a one-way street for southbound traffic to the south of Jefferson Street, but it is a two-way street north of Jefferson Street. Both streets are forty-eight feet in width. Traffic at the intersection is controlled by conventional red, amber and green traffic stop and go lights. The plaintiff, going south on Wyman Street, stopped at Jefferson Street in response to a red light. Another car was abreast of her to the left. The defendant, travelling west on Jefferson Street, in the second lane from the north of four lanes of traffic, was approaching the intersection down an incline from a bridge. It was five o'clock in the afternoon, and traffic was described as heavy. When the light changed to green, plaintiff testified she and the car to her left proceeded into the intersection. The car to her left stopped a quarter of the way into the intersection, while plaintiff proceeded half way into the intersection whereupon her car and defendant's westbound vehicle collided. When both cars came to rest, they were in the southwest quadrant of the intersection.
Plaintiff charged that defendant was intoxicated and had driven his car through the intersection against a red light. The defendant denied having consumed anything of an alcoholic nature on the day in question. He testified that he was in a stream of moving traffic and that the light changed from green to yellow as he came even with the traffic lights. He proceeded across the intersection as did the car immediately ahead of him.
The only eye-witnesses who testified in court were the plaintiff and the defendant. Plaintiff and defendant had not been accompanied by any passengers. The testimony of neither party was corroborated. The plaintiff testified that while standing on the southwest corner of the intersection talking to the defendant and the policeman who had come to the scene, a man and woman came up and said they saw the accident. Certain testimony of the plaintiff that followed was objected to by defendant as hearsay and constitutes his principal claim that reversible error was committed. The trial court admitted the following evidence over defendant's objection:
Counsel for Plaintiff: Will you tell the Jury what was said in the presence of Mr. Guffey and the hearing of Mr. Guffey?
Counsel for Defendant: If this is a conversation of somebody else, then I am going to object to it on the ground of hearsay.
Counsel for Plaintiff: It is in his presence.
The Court: I will let her answer as to what was said even in the presence of Mr. Guffey.
A.: Well, this man and woman were standing there and said they had seen it, they had put money in the meter and were facing the corner and seen Mr. Guffey come through the intersection. And they said to the policeman he was coming very fast, there was no brake mark where he tried to stop, and he hit the car and she had the green light and they said he did not attempt to stop.
Counsel for Defendant: I object to this, Your Honor, I want the record to show I object to that testimony.
The Court: Let the record so show.
Counsel for Plaintiff: What, if anything, did Mr. Guffey say then when this witness said that ...