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Hires v. Price

SEPTEMBER 26, 1966.

LAWRENCE J. HIRES, PLAINTIFF-COUNTER DEFENDANT-APPELLEE, AND M.C. SLATER, INC., A CORPORATION, DEFENDANT-APPELLEE,

v.

DALE S. PRICE AND AGRICULTURAL TRANSPORTATION ASSOCIATION, DEFENDANTS-APPELLANTS, AND FREEMAN VAUGHN, DEFENDANT-COUNTER PLAINTIFF-APPELLANT.



Appeal from the Circuit Court of Livingston County; the Hon. R. BURNELL PHILLIPS, Judge, presiding. Judgment for plaintiff reversed and remanded.

CRAVEN, J.

This suit was originally brought by Lawrence J. Hires, as plaintiff, against Dale S. Price, Freeman Vaughn and Agricultural Transportation Association. The plaintiff was the operator of a tractor-trailer unit that collided with another tractor-trailer unit, driven by the defendant Price, at the intersection of Routes 66 and 47 in Livingston County, Illinois. The unit driven by the defendant Price was owned by the defendant Freeman Vaughn and under lease to the defendant Agricultural Transportation Association. The defendant Vaughn counterclaimed for property damage against Hires and M.C. Slater, Inc., who had the Hires' unit under lease. The jury found for the plaintiff Hires against all the defendants and also in favor of all counterdefendants on the property damage claim of the defendant-counterplaintiff, Freeman Vaughn.

The defendant contends as error:

1. That plaintiff was guilty of contributory negligence as a matter of law and that the trial court should have granted judgment notwithstanding the verdict;

2. That ch 95 1/2, sec 198b, Ill Rev Stats 1963, requiring certain prescribed rest periods for operators of second-class motor vehicles, is not applicable to this case;

3. That the plaintiff's attorney engaged in prejudicial conduct concerning certain inadmissible testimony and argument to the jury.

The undisputed facts show that the plaintiff was approaching the intersection, traveling west on Route 66, and that the defendant was approaching the intersection, traveling south on Route 47. There were traffic signals at the intersection. The weather was clear and the intersection had no obstructions to the view of approaching vehicles. All other material facts are in dispute.

In substance, the plaintiff produced the following witnesses and testimony.

Dale Price: The defendant was called as an adverse witness under section 60 of the Practice Act. He testified that he was traveling south on Route 47 when he struck a truck driven by the plaintiff, Lawrence Hires, at the intersection of Route 47 and Route 66. He stated he first saw the plaintiff's vehicle 200-300 feet from the intersection as it was traveling west on Route 66. Although the witness could not estimate the speed of the plaintiff's truck, he stated his truck was traveling between 30 and 35 mph. At this time, the witness stated the light for traffic on Route 47 was red and that it later changed to amber and then green when he was about 100 feet away from the intersection. He recalled the collision as occurring in the northwest quadrant of the intersection.

The defendant also testified he kept a log of his trip to and from Dalbo, Minnesota, and related his hours of travel and rest.

Freeman Vaughn: The co-defendant and owner of the tractor-trailer unit was also called as a section 60 witness. He stated he owned the tractor-trailer driven by Dale Price and that it was leased to the Agricultural Transportation Association. He testified that he went to the scene of the accident, but did not talk to John Tomachevsky and did not contact him by telephone.

John Tomachevsky: This witness testified that he was traveling behind three trucks on Route 66, approaching the intersection from the east. He stated that he moved into the passing lane approximately 175-180 feet from the intersection. The witness stated he saw the accident occur. At the time of the collision the light was green for traffic on Route 66. He further testified that a small truck, traveling in the opposite direction on Route 66, was attempting a left turn through approaching traffic.

The witness then attempted to testify that he had been contacted by telephone several times by the defendant Freeman Vaughn. He stated that he was asked to change his story and that all the calls were threatening. The testimony was objected to and finally stricken because of an inability of the witness to identify the voice of the alleged telephone caller. The court then ordered a 10-minute recess. Upon resumption of proceedings, John Tomachevsky was recalled and the defendant was asked the following question and made the following answer:

"Q. Mr. Tomachevsky, during the last fifteen minutes have you had occasion to hear the voice of this man sitting with the ...


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