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Mack v. Davis

NOVEMBER 2, 1966.

WILLIAM MACK, PLAINTIFF-APPELLANT,

v.

KENNETH DAVIS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the Sixteenth Judicial Circuit of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding. Judgment for defendant reversed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Leon Mack brought this suit as father and next friend of his son, William Mack, then a minor and now an adult, and herein called plaintiff, to recover for injuries sustained by the latter while driving a tractor for, and owned by, the defendant, Kenneth Davis. The jury returned a verdict for the defendant. The court entered judgment on the verdict and the plaintiff appealed.

The plaintiff was injured on June 27, 1961 and at the time was 17 years of age. He had previously done very little farm work and, for all practical purposes, was completely inexperienced in operating a tractor. He had a driver's license and was familiar with the operation of an automobile.

The injury occurred the first day the plaintiff worked for the defendant on the latter's farm. The defendant told the plaintiff to drive the tractor approximately one-half mile down to the field where he would rake hay and gave the plaintiff no instructions or warnings as to the operation of the tractor. The plaintiff started the tractor, drove it to the field, and spent the remainder of the morning pulling a hay rake behind the tractor.

The plaintiff drove the tractor back to the farmhouse at noon and after lunch he drove the tractor back to the field. En route to the field, while driving down a paved highway at about ten to twelve miles an hour and as he approached the gravel driveway which entered the field, he pushed the throttle in, applied the brakes and turned the wheels to the right. He testified that he felt "a slight whipping motion" and had the sensation of falling forward. The next thing the plaintiff remembered was that he was sitting on his leg on the gravel drive — injured.

The tractor was a "tricycle" type, with the two front wheels close together. There was evidence from which the jury could have found that the steering mechanism was loose and that the play in the steering wheel was such that it could be turned almost 90° before the front wheels would respond. The tractor was equipped with individual brake pedals so that the brakes could be applied on one wheel or the other for turning. The brake pedals could also be locked together by a bar so that if either pedal was depressed the brakes theoretically would be applied evenly to both wheels so that they would not cause the tractor to turn.

At the time of the injury, the two brake pedals were securely locked together by the connecting bar. There was evidence from which the jury could have found that the connecting bar was worn; and that the pedal for the left wheel had to be depressed somewhat further than the right one before it would brake the wheel. There was no evidence that the brakes had ever been adjusted.

The plaintiff contends that the trial court erred in certain evidentiary rulings and in the refusing and giving of certain instructions.

As to the evidentiary rulings, the plaintiff contends that the court erred in refusing to permit an answer to a hypothetical question calling for an opinion as to what type of action the tractor would take, under the stated assumed facts relative to the condition of the steering and brakes of the tractor and the driving conditions at the time of the accident. The defendant objected to the question but stated no grounds for the objection. The court sustained the objection and, when counsel asked for the basis for the objection, the court refused plaintiff's request to have defendant specify his objections.

The plaintiff was entitled, upon request, to have the defendant specify the grounds for the objection to the hypothetical question. We are not certain of the trial court's basis for excluding the answer, and obviously, neither was the plaintiff. Unless it is apparent that the reason for the exclusion of the evidence cannot be overcome, the grounds should be specified so that the aggrieved party may be given the opportunity to obviate the objection. Wright v. Smith, 82 Ill. 527, 528 (1876); People v. Edward Merrill, 76 Ill. App.2d 82, 221 N.E.2d 145; Callaghan's Ill Evid, Vol 6, § 16.07.

If the defendant intended to base his objection on factual elements either improperly included or excluded in the question, it is clear that he waived the error by his failure to specify such elements. Goldberg v. Capitol Freight Lines, 382 Ill. 283, 290, 47 N.E.2d 67 (1943); Smith v. Illinois Valley Ice Cream Co., 20 Ill. App.2d 312, 321, 156 N.E.2d 361 (1959); Placher v. Streepy, 19 Ill. App.2d 183, 190, 153 N.E.2d 369 (1958).

Further, absent specific objection, we believe that the plaintiff was entitled to the benefit of the witness' opinion on the question propounded. The plaintiff produced the witness for the purpose of having him reconstruct, in his opinion, the action which the tractor probably took. The plaintiff — the only occurrence witness — was unable to shed much light on what in fact had occurred. The possible effect of the interaction of the particular manner in which this tractor was operated and turned, with the claimed defects in the tractor under the road conditions specified, was difficult of comprehension and explanation. "(T)he trend is to admit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation." Miller v. Pillsbury Co., 33 Ill.2d 514, 516, 517, 211 N.E.2d 733 (1965). It is still for the jury to accept or reject the opinion testimony.

The defendant claims that the witness was not properly qualified as an expert, and that there was not sufficient physical evidence to provide the basic data necessary for the witness to reconstruct and give an opinion as to what happened. Suffice it to say, his general objection to the question was not sufficient to raise these issues. Such objection raised the question of relevancy and materiality only. Johnson v. Bennett, 395 Ill. 389, 398, 69 N.E.2d 899 (1946). Further, it was not necessary to make an offer of proof as to the witness' opinion. Unless the trial court requires counsel to make an offer, such offer is not necessary where a question, in proper form, shows the purpose and materiality of the ...


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