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Nelson v. Pals

JULY 27, 1964.




Appeal from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding. Reversed and remanded with directions.


This is a negligence action resulting from a collision between automobiles driven by the parties in the case. Defendant counterclaimed for damages allegedly sustained by him. The jury returned a verdict for the plaintiff on the complaint and the counterclaim. Defendant brings this appeal. There are no questions raised on the pleadings.

It is defendant's contention that the trial court erred in excluding a witness of his; that the verdict was against the manifest weight of the evidence; that plaintiff's attorney made prejudicial arguments; and that the verdict was excessive.

The locale of the collision was Cottage Grove Avenue approximately a half mile north of Joe Orr Road. At this point Cottage Grove is a straight road with no hills or curves, running through farmland and open country. It is a two lane, black macadam highway approximately 20 feet wide with a white center dividing line. At about 4:00 p.m. on July 28, 1954 the plaintiff, alone in his car, was driving south on Cottage Grove. Defendant, also alone, was driving north on Cottage Grove. The basic question is: which driver crossed the center dividing line thereby causing the accident.

It was raining at the time but the evidence is conflicting as to the intensity of the rain and the visibility. Defendant testified it was a drizzling rain and visibility was approximately a mile and a half. Plaintiff testified it was raining "very bad" and he could see perhaps 25 or 30 feet ahead of him.

Plaintiff testified he was traveling about 30 miles per hour; that when he first saw defendant's car it was upon him in the southbound lane (his lane), about 25 or 30 feet away, part of it in the northbound lane. He could do nothing about it and the collision occurred.

Both drivers were rendered unconscious and were taken in the same ambulance to St. James Hospital in Chicago Heights.

Allen Bennett, called by plaintiff, testified that he was driving a Ford panel truck north on Cottage Grove at a speed of about 35 miles per hour; that it was raining heavily and he could see 150 to 225 feet or so, roughly, down the road; that at the time of the impact, he was 50 to 75 yards behind defendant's car; that the car driven by defendant passed him at a speed of about 40 to 50 miles an hour and then got back into the right lane ahead of him; that after "it ran for a piece" it "seemed" like the front wheel slipped off the highway; that it then did a "fishtail," meaning he was getting back on the highway; that he then saw plaintiff's automobile for the first time traveling south in the west lane; that there was a head-on collision; that at the time of the collision the front portion of defendant's car was in the west side lane; that after the impact defendant's car was in the west lane on the west side of the road, partially on the pavement and partially on the west shoulder; that plaintiff's car was in the ditch on the east side of the road, its front facing in a southerly direction a few feet north of the other car.

Gus Mourgelas testified he was a Cook County deputy sheriff at the time of the accident and that he was the investigating officer. He used the accident report to refresh his recollection. He stated that it was raining when he and his partner arrived at the scene; that plaintiff's car was on the east side of Cottage Grove and defendant's car was facing north on the east side of Cottage Grove. His report did not indicate any evidence of skid marks; that he believed defendant's car was facing in a northerly direction with his left rear and front wheel on the highway and his right front and rear wheels on the east shoulder of the road; that about two thirds of the width of the car was on the east shoulder; that plaintiff's car was to the north thereof and his report indicated that defendant's car was completely off the highway on the east shoulder.

Defendant testified that he saw the other car when it was approximately a city block ahead of him; that there was nothing unusual about it until it was about 150 to 185 feet from him; that it then crossed the dividing line and came directly at him at a speed of 50 to 55 miles an hour. He (defendant) pulled over to the right shoulder and stopped. The collision occurred. About two thirds of defendant's car was on the shoulder. He stated that he had seen people working on their farms in the locality and remembered speaking to a Mr. Verduin and a Mr. Van Zuidam, his cousin, at the scene after regaining consciousness; that plaintiff and defendant occupied the same hospital room for the first night and he heard plaintiff say on three of four occasions: "what have I done to you, and how can I make this up to you?"

Defendant then called Loren Van Zuidam who stated that he was working in his yard about one mile south of the scene. Plaintiff objected to his testifying because this witness' name was not in defendant's answer to an interrogatory submitted prior to trial. The interrogatory was in the following form:

"1. What are the names and addresses of all persons in the possession of the defendant, or once in his possession and subsequently furnished to his attorneys, insurance company, or insurance company representative, who have knowledge of relevant facts pertaining to the accident complained of in plaintiff's complaint."

In answer to this interrogatory, defendant listed only the name and address of the occurrence witness, Allen Bennett. Defendant's attorney informed the court that he had not prepared the answers to the interrogatories and did not become aware of the omission until the week-end prior to trial, when he commenced his preparation. The trial court stated that it regarded the interrogatory as a continuing one and the omission should have been corrected when ascertained.

Defendant argued that there could be no surprise to the plaintiff since the defendant had disclosed the name of the witness in a deposition taken of him one year prior to the submission of the interrogatory wherein defendant mentioned that his cousin, "Mr. Van Zuidam" was at the scene before he, the defendant, was taken to the hospital; that Van Zuidam's father lives about a mile and one-half from the scene; that the witness did not see the accident; that he lives in South Holland on Cottage Grove, the exact address not known, but that he had a telephone number. Counsel further argued to the trial court that the interrogatory was bad in form as held in Reske v. Klein, 33 Ill. App.2d 302, 179 N.E.2d 415 (1962) and Fedors v. O'Brien, 39 Ill. App.2d 407, 188 N.E.2d 739 (1963). Counsel also informed the court that this witness would testify on one point — as to the location of ...

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