Appeal from the Circuit Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding. Reversed and remanded.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT. This is an appeal from a judgment of the circuit court of Cook County entered on a jury verdict finding in favor of both defendants, Edward Witkowski and Anton Tun, and against the plaintiff, Yvonne Schoolfield, and also from the refusal of the trial court to grant plaintiff's post-trial motion seeking judgment notwithstanding the verdict, or, in the alternative, a new trial.
The action was brought to recover damages for personal injuries allegedly sustained in an automobile collision which occurred on February 23, 1961, in the intersection of Hoyne and Armitage Avenues in the city of Chicago.
The plaintiff sets up the following points in support of her appeal: (1) the court erred in denying plaintiff's motion for judgment notwithstanding the verdict; (2) the verdict and the judgment entered thereon are contrary to the manifest weight of the evidence; (3) it was error for defendant Tun, after calling the plaintiff's husband as his own witness, to refer to him as hostile and adverse and to impeach him; (4) it was error to allow, over objection, the admission into evidence of photographs which disclosed the existence of stop signs regulating the movement of traffic on the street on which plaintiff was traveling, where no proper foundation was laid for their admission; (5) it was error to allow the impeachment of plaintiff on irrelevant, immaterial and prejudicial matters and to allow the interrogation of witnesses relative to the plaintiff's whereabouts on the evening prior to the accident and other immaterial matters in order to suggest to the jury that plaintiff was a person of loose and lax morals; (6) reversible error was committed when defendant Witkowski laid a foundation to impeach plaintiff and then failed to offer proof that the plaintiff had in fact made the allegedly impeaching statements; (7) it was error for the court to allow testimony regarding bus schedules on Armitage Avenue to stand despite the fact that none of the eyewitnesses testified to having seen any buses at the time of the collision; (8) defendant Tun committed prejudicial error by cross-examining and impeaching plaintiff's doctor on immaterial matters; (9) it was error to permit an automobile mechanic, not an eyewitness to the collision, to be cross-examined relative to his opinion about the main point of impact to defendant Tun's car; (10) it was error to permit defendant Witkowski to testify that plaintiff's driver had been drinking without specifying upon what, if any, facts or circumstances he based his conclusion, and (11) the arguments of the defense attorneys were inflammatory and prejudicial.
On the morning of February 23, 1961, the plaintiff was a passenger in an automobile being driven by her fiance, Richard Schoolfield (their marriage post-dated the accident). Shortly before 7:00 a.m. on the morning in question, the Schoolfield automobile was traveling in a northerly direction on Hoyne Avenue approaching the intersection of that street with Armitage Avenue, and the vehicles of defendants, Edward Witkowski and Anton Tun, were traveling in an easterly direction on Armitage Avenue approaching the same intersection. There were two eastbound lanes on Armitage Avenue. Defendant Witkowski's automobile was in the southerly eastbound lane on Armitage. Defendant Tun's automobile was in the northerly eastbound lane of Armitage Avenue next to and about one-half car length behind defendant Witkowski's automobile. There was conflicting testimony as to the speeds of the three automobiles and their relative locations just prior to the accident. The collision occurred in the southeast quadrant of the intersection. The front end of defendant Witkowski's automobile came in contact with the right rear portion of the Schoolfield automobile and then the Schoolfield and Tun automobiles collided.
In support of her first two contentions, that the court erred in denying plaintiff's post-trial motions and that the verdict was against the manifest weight of the evidence, plaintiff cites Ill. Rev Stats 1959, chap 95 1/2, par 165. That paragraph reads in pertinent part:
"165. sec 68 Vehicles approaching or entering intersection.
(a) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
(b) When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right."
There was conflicting testimony regarding the position of the various cars just prior to the collision, the speed at which the respective vehicles were traveling, and other material matters. It was the proper function of the jury to determine which parts of the conflicting testimony to believe. Jackson v. Gordon, 37 Ill. App.2d 41, 44, 184 N.E.2d 805.
A motion for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all of its intendments most favorable to the party resisting the motion, tends to prove the material elements of the case. Zide v. Jewel Tea Co., 39 Ill. App.2d 217, 226, 188 N.E.2d 383.
The court properly denied plaintiff's motion for judgment notwithstanding the verdict. There was evidence from which the jury could have concluded that defendants' automobiles entered the intersection before the automobile in which the plaintiff was riding. Under the above statutory provision (Ill Rev Stats 1959, c 95 1/2, § 165) it would, under such circumstances, have been the duty of the plaintiff's driver to yield the right-of-way to defendants' automobiles. Whether or not the defendants were guilty of any negligence was a proper question for the jury, and we cannot say that its determination was entirely without support as would have been required in order to grant plaintiff's motion for judgment notwithstanding the verdict, nor can we say that it was against the manifest weight of the evidence. Storment v. Swift & Co., 5 Ill. App.2d 417, 125 N.E.2d 697.
Counsel for defendant Tun prefaced his examination of the plaintiff's husband, who was called as defendant Tun's witness, with a request to impeach the witness and have him declared hostile or adverse if the need arose. During the direct examination of this witness, counsel for defendant Tun asked him if, during a discovery deposition taken on November 16, 1961, the following questions had been posed, and if he had made the following answers: "Q. At the time you first saw these vehicles, were you able to form an opinion as to the speed of either one of them? A. They didn't look like they were going too fast at that time. Q. Were you able to form an opinion as to their speed? A. About twenty-five miles an hour." Schoolfield answered, "I don't remember whether I did or not, Sir." The witness had previously testified on the stand that the defendants' vehicles were traveling about thirty-five miles an hour. Defendant Tun was subsequently allowed to offer proof that the above questions had been put to the witness at the discovery deposition, and the witness made the above answers.
The case of Finch Bros. v. Betz, 134 Ill. App. 471, was an action brought to recover a $200 commission allegedly due the plaintiff upon the sale of certain horses. The purchaser was one J.E. Nye. After defendant refused to pay the commission demanded, plaintiff prepared and procured Nye to sign a letter addressed to plaintiff, purporting to set forth the facts relating to the transaction as Nye knew them, and to which it was stated, he was willing to testify. Nye was called to testify by the plaintiff, and his testimony differed in many particulars from the facts as set forth in the letter. The court admitted the letter in evidence over defendant's objection. The appellate court in reversing the decision of the trial court in favor of the plaintiff, said on page 477:
"If the witness, Nye, unexpectedly to appellee, gave testimony which was at variance with the statement in question, appellee had a right to call his attention to such statement for the purpose of refreshing his memory or awakening his conscience. It was not proper to introduce the same evidence either for the purpose of having the ...