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Kosowski v. Mcdonald Elevator Co.

JANUARY 23, 1962.

ANDREW KOSOWSKI, AS ADMINISTRATOR OF THE ESTATE OF CONNIE KOSOWSKI, DECEASED, AND OF THE ESTATE OF CHARLOTTE KOSOWSKI, DECEASED, PLAINTIFF-APPELLANT,

v.

MCDONALD ELEVATOR COMPANY, A CORPORATION, AND OWEN HARPER, JR., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macoupin County; the Hon. CLEM SMITH, Judge, presiding. Judgment affirmed.

REYNOLDS, J.

This cause arose out of a collision between an automobile driven by Nedra Kosowski and a truck owned by McDonald Elevator Company, and driven by Owen Harper, Jr. its employee. The collision occurred at the intersection of U.S. Highway No. 66 (hereinafter called U.S. 66) with Illinois State Route No. 138 (hereinafter called Illinois 138). Mrs. Kosowski was driving north on U.S. 66 and turned into the intersection to go west and was in the west half of the southbound lanes of U.S. 66 when struck by the truck. The truck was proceeding south on U.S. 66 at a speed estimated at 45 to 50 miles per hour. Riding with Mrs. Kosowski were her three daughters Sharon Kosowski Scheller, Connie Kosowski and Charlotte Kosowski. Connie and Charlotte were killed. The suit is brought by the father, Andrew Kosowski, as administrator. The automobile was a red Nash and the truck was a grain truck loaded with grain and weighing some 59,000 lbs. The pavement was dry, the weather clear and the time was about 2:00 o'clock p.m. U.S. 66 is a four laned highway, two lanes for southbound traffic and two for northbound traffic, with a dividing grassy strip, and at this point runs generally north and south. Illinois 138 runs east and west. There were six electric traffic control lights at the intersection, two on each side of the intersection and two in the middle. There are left turn lanes on U.S. 66 left of the traffic lanes on each side. The highways are level for a considerable distance on each side of the intersection.

Harper estimated his speed at 40 miles per hour when 300 yards from the intersection. Father August Sperl, an eyewitness, estimated the truck speed at 45 to 50 miles per hour. Walter J. Sellers, an eyewitness, estimated the speed of the truck at 45 to 50 miles per hour.

L.R. Bailey, a field engineer in the maintenance department of the Illinois Highway Department was driving behind the Kosowski car, and saw it turn into the left turn lane about 200 to 250 feet south of the intersection. He did not know whether Mrs. Kosowski made a stop or not but doubted it. He was about 50 feet beyond the intersection when he heard the screech of tires on the pavement. The traffic lights were green when he approached the intersection and were green as he proceeded through it. He did not recall seeing the truck before the accident.

Sharon Kosowski Scheller, a daughter, was riding in the back of the Kosowski car. She, her mother and two sisters had gone to Staunton to get school clothes. Mrs. Kosowski was driving. She testified that as Mrs. Kosowski approached the intersection she pulled off into the left turn lane and put her hand out for a left turn signal. The next thing this witness remembered was waking up in the hospital.

Mrs. Nedra Kosowski testified: She pulled into the left turn lane 100 feet south of the intersection, and gave a left turn signal with her hand; when she first observed the truck he was way down the lane; she came to a complete stop as she came to the intersection and she observed the truck then and it was 300 feet or more down the road; the traffic lights were green as she approached the intersection; as she started to make the turn she glanced up and to her the light appeared yellow; as she made the turn, in low gear, the car was barely crawling; there was nothing to obstruct her view of the truck; the next thing she remembers was her head going round and round; that she had time to get across the intersection.

Father August Sperl, Rector of Sacred Heart Church in Springfield testified he was travelling south on U.S. 66, at a speed of between 45 and 50 miles per hour; the truck passed him some 300 yards north of the intersection; truck was not going a lot faster than his car but was going faster when he passed; a red Mercury automobile also passed him; the speed of the truck at the time of the impact was definitely not over the speed limit and the lights were green when he approached and green at the time of impact; he saw Kosowski automobile a split second before the accident; suddenly saw something shoot across the highway and saw it momentarily.

Walter J. Sellers, of Ironton, Missouri, was driving the red Mercury automobile. He testified he saw truck pass Father Sperl's car half to three-quarter of a mile north of the intersection; he pulled around Father Sperl's car and was approximately even with the back of the truck, but in the east half of the southbound lanes as he approached the intersection; the traffic light was green and remained green after the impact, at no time turning yellow; saw Kosowski car and saw it make a diagonal turn to the left when he first noticed it; Kosowski car never stopped or paused in the intersection and was traveling at 25 miles per hour or possibly more; saw no arm signal; automobile proceeded west in front of the truck.

Roy Schmidt, a State Highway Policeman, testified he arrived at the scene of the accident some 15 minutes after it happened; there were no skid marks on the pavement; the point of impact was in the intersection; there are six electric signals at the intersection; the Kosowski automobile was some 35 feet from the point of impact and the truck was some 465 feet.

The cause was tried before a jury and the jury returned a verdict of "Not Guilty" as to both defendants. Judgment was entered on the verdict and the plaintiff appeals.

No questions on the pleadings are raised in the appeal. The appeal raises two points. First, that the trial court erred in permitting certain testimony of the witnesses Father August Sperl and Roy Schmidt and second, that the trial court erred in the giving of Defendant's Instructions Nos. 10, 11 and 12.

The testimony of Father Sperl objected to was this question: "Was there anything unusual that you noted about the operation of the truck by Owen Harper, Jr., at and immediately prior to the accident?" and the answer "Nothing unusual." And the question: "Referring to when he passed you and had gone on ahead of you was he driving carelessly?" and the answer "I could not say he was, no."

The testimony of Trooper Schmidt objected to was this: "Referring to your report, your report of contributing circumstances, is that on the back of page two of Exhibit Seven?" and the answer: "It is." and the question: "What does your report show in that category?" and the answer: ...


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