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Schmitt v. Chicago Transit Authority

JANUARY 29, 1962.




Appeal from the Superior Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Affirmed.


This is a personal injury case, in which defendant appeals from a $67,500 verdict and judgment for plaintiff. Defendant's appeal is grounded on contentions of prejudicial trial errors and in the giving and refusing of instructions.

Plaintiff, Milton G. Schmitt, is a physician and surgeon, licensed to practice in Illinois since 1928. He was injured in a collision with defendant's northbound bus in the intersection of Lunt and Ashland Avenues, Chicago, on the evening of October 24, 1953, at about 11:45 o'clock. Plaintiff was driving west on Lunt in his own automobile and was accompanied by Vita DePrima, his physician's assistant, and Margaret Trotsel, administrator of a hospital founded and operated by plaintiff.

The primary issue of fact was whether the green light was in plaintiff's favor when he drove into the intersection.

Plaintiff testified that: as he approached Ashland Avenue, he glanced to the left and observed headlights of a vehicle proceeding north; he entered the intersection at a speed of about 18 miles an hour; the traffic signal lights governing east and west traffic were green; a moment after his vehicle was in the intersection, and while the east and west traffic light was still green, he saw the headlights again coming from the left and just a moment after that there was a sudden impact on the left side of his car, and he became unconscious.

Vita DePrima testified that as they entered the intersection, the lights governing traffic going west on Lunt Avenue were green; there was a sudden impact on the left front side of the car; before the impact she did not see any moving vehicles in the intersection. Margaret Trotsel was deceased at the time of the trial.

The operator of defendant's northbound Ashland Avenue bus testified that: as he traveled north on Ashland Avenue, before he reached Lunt Avenue, all of the lights on the bus were lighted; he first saw the green light for northbound traffic when he was about 50 feet from the intersection, and the light remained green until he reached and entered the intersection; he saw plaintiff's vehicle westbound on Lunt Avenue when it was about five feet back of the northeast light, going at a high rate of speed, "approximately 35 to 40"; plaintiff's vehicle did not slow down before the collision, and it hit the right front post of the bus by the door; he did not blow his horn before the collision.

Another bus driver, who saw the collision as he was driving a southbound Ashland Avenue bus, testified that: he did not see plaintiff's vehicle before the collision; he first saw the northbound bus a few feet south of Lunt Avenue; the traffic lights controlling traffic on Ashland Avenue were green; he saw a cloud of dust in front of the bus, and when the dust cleared away, he saw an automobile in front of the bus; at the time he saw the cloud of dust, the north and south traffic lights were still green.

Defendant complains of error in the redirect examination of plaintiff's witness, Vita DePrima. On direct examination she testified that she first noticed that the east and west traffic lights were green when plaintiff's vehicle was "somewhere in between the half block and the corner of Ashland." On cross-examination she was interrogated about an answer given by her in a discovery deposition, in which she had said, "I can't remember where the car was, but I remember seeing the green light." On redirect the court permitted interrogation as to other answers given by her in the deposition regarding when she saw the green light. Defendant asserts that this permitted the witness "to quote her own self-serving statements made before trial in order to convey to the jury that she had made the same statements before trial as she had given them in her testimony upon direct examination."

It is not proper to ask a witness to repeat upon redirect examination statements he made upon direct examination. (Forslund v. Chicago Transit Authority (1956), 9 Ill. App.2d 290, 132 N.E.2d 801.) Proof of the out of court declarations of a witness, in corroboration of testimony given by him on the trial of the case, is, as a general rule, inadmissible, even after he has been impeached or discredited. (Chicago City Ry. Co. v. Matthieson (1904), 212 Ill. 292, 297, 72 N.E. 443.) These rules are not in conflict with Supreme Court Rule 19-10(4): "If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the part read or used."

As defendant contends, it was never intended by this rule that unrelated questions and answers may be read, which do not explain, modify or reconcile the question and answer upon which a witness may be impeached. However, "in fairness" can be abused, and the interpretation of "in fairness" requires the use of sound discretion by a trial judge. A statement may be repetitious of or bolster up a direct examination statement, and yet may be proper in order to avoid the unfairness and distortion which can result if a party is permitted to read isolated and out-of-context portions of a deposition. Goertz v. Chicago & N.W. Ry. Co. (1958), 19 Ill. App.2d 261, 271, 153 N.E.2d 486; Smith v. City of Rock Island (1959), 22 Ill. App.2d 389, 397, 161 N.E.2d 369.

We have examined the questioned portion of the redirect examination in the light of the above rules. The questions and answers are related to the alleged impeachment and are on the same subject matter. We find no abuse of discretion here if, in permitting plaintiff to explain and clarify what she meant by "I remember seeing the green light," some repetition or corroboration occurred.

Another ruling of which defendant complains was the refusal by the trial court to permit it to be shown that Vita DePrima had been a party plaintiff to the instant suit, and that four days before the trial she voluntarily dismissed her suit. We think that questions concerning the former litigant status of a witness also come within the sound discretion of the trial court, and that no hard and fast rule can be announced in this area.

Here, the trial court properly allowed wide latitude in the cross-examination of Vita DePrima to show her close association and friendliness with plaintiff over a period of twenty-six years. (People v. Bote (1941), 376 Ill. 264, 33 N.E.2d 449.) This included a showing that to some extent her association was social, that she had lent money to him, and had driven with him many times before the accident. Throughout the entire trial, her interest in and affiliation with plaintiff, past and present, were brought to the attention of the jury. Any possible undue willingness or desire to assist plaintiff was developed, in order that it could "be brought into the balance by the jury in their efforts to ascertain and declare the truth." (North Chicago St. ...

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