Appeal from the Circuit Court, Seventeenth Judicial Circuit of
Winnebago County; the Hon. ARTHUR V. ESSINGTON, Judge, presiding.
Judgment for plaintiff reversed and remanded.
MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 30, 1966.
On October 8, 1963, Murl Harris, the plaintiff, was riding as a passenger in an automobile driven by one John Dallavo westerly on Simpson Road in Winnebago County. Simpson Road intersects Centerville Road and has a posted speed limit of sixty-five miles per hour. The only traffic controls at the intersection are stop signs halting Centerville Road traffic before it enters Simpson Road. At the time in question the defendant, Nicholas Minardi, drove his car northerly on Centerville Road and stopped as he approached Simpson Road. He was unable to clearly see along Simpson Road because of standing corn. Minardi proceeded and struck the left side of the Dallavo car before it could clear the intersection. As a result of the accident Harris sustained injuries to his left arm, head and neck. Heat treatments, massages and traction were prescribed and administered to Harris and at the time of the trial he had medical expenses of $1,070.90. His doctor diagnosed the injury as a whiplash injury of the neck, some contusion of the skull and cerebral concussion. The doctor further testified that the condition was permanent.
This action was brought by Harris against Minardi, the driver of the other car, to recover for his personal injuries. At the conclusion of the trial the jury found Minardi guilty and rendered judgment for Harris in the amount of $2,250. Harris was not satisfied with the size of the award and filed this appeal, raising certain questions, some which will be commented upon. We conclude that error was committed and that the case must be reversed and remanded for a new trial. It is, therefore, necessary that we discuss certain issues which should be corrected upon retrial.
The plaintiff first urges that the court erred in giving the following instruction based upon section 49 of the Uniform Act Regulating Traffic on Highways (c 95 1/2, § 146, Ill Rev Stats (1963)):
"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
"`No person shall drive any vehicle upon any public highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property; or is greater than the applicable maximum speed limit established by this section or by a regulation or ordinance made pursuant to the provisions of this Article. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions; and speed shall be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.'
"If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was contributorily negligent before and at the time of the occurrence."
This instruction was given as a result of the fact that one of the defendant's theories was that the plaintiff and his driver were engaged in a joint enterprise. There was no evidence supporting this theory and the trial judge refused to give an instruction concerning joint enterprise. The trial judge did give an instruction which informed the jury that the negligence of the plaintiff's driver could not be imputed to the plaintiff. Thereupon the foregoing instruction on speed should have been withdrawn by the defendant or refused by the trial court. The only evidence of speed in the case was on the part of the plaintiff's driver. There is no evidence that the defendant was speeding. The speeding instruction tended to contradict the instruction on imputing negligence and the jury could have easily been confused by giving the foregoing instruction. Since the only evidence of speed was on the part of the plaintiff's driver the jury could have concluded that they were to use this evidence against the plaintiff as well as his driver. Under such misapprehension, the jury could have reached a compromise verdict.
Considered in the context of other error committed in the trial it appears that the giving of the speeding instruction under these circumstances constituted reversible error.
The plaintiff contends that the trial court improperly commented upon the evidence. We do not find that the court's comments were improper.
The plaintiff next urges that the trial court erred in sustaining an objection involving a question directed to the defendant which asked, "You failed to yield the right-of-way, didn't you?" Thereupon the plaintiff attempted to impeach the defendant by offering into evidence an admission from the defendant's discovery deposition wherein the question, "You failed to yield the right-of-way . . . ?" was asked and the answer, "Yes, that is right" given. The defendant's answer in this instance was a legal conclusion and does not constitute an admission. The trial court was correct in sustaining the objection and in refusing the impeachment.
We now come to one of the main issues of this controversy. On July 13, 1965, pursuant to court order, the plaintiff was examined by Dr. Eugene T. Leonard on behalf of the defendant. Dr. Leonard's written report was submitted to plaintiff's counsel on July 16, 1965, and the trial commenced July 21, 1965. Dr. Leonard was permitted to testify over the plaintiff's objection that there was no ...