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Fahrforth v. Kwiatkowski

JANUARY 19, 1967.

FRANK FAHRFORTH, JR., BY FRANK FAHRFORTH, SR., ETC., PLAINTIFF AND COUNTER-DEFENDANT, APPELLEES,

v.

LEO KWIATKOWSKI, DEFENDANT AND COUNTER-PLAINTIFF, APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JOHN GUTKNECHT, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This involves an automobile accident which occurred on June 5, 1957, on the Southwest Highway in Chicago Ridge, Illinois. Both plaintiff's and defendant's cars were travelling in a northeasterly direction. The only occurrence witnesses were the defendant and the plaintiff's decedent, who died subsequent to the accident from unrelated causes. Because of plaintiff's decedent's death the defendant was not permitted to testify to facts concerning the occurrence. The case was presented on circumstantial evidence and the inferences to be drawn therefrom.

The defendant filed a counterclaim against the plaintiff. The case was tried before a jury and the jury found in favor of the plaintiff, and assessed damages in the sum of $8,100, and also found against the counter-plaintiff and in favor of the counterdefendant. Judgment was thereafter entered on the verdict.

It is the theory of the defendant that when circumstantial evidence is equally susceptible of opposite inferences, one consistent with liability and one inconsistent, neither conclusion is proved and the plaintiff, who had the burden of proof on this issue, has not sustained it and a verdict in his favor must be set aside.

The defendant's second contention is that although he introduced into evidence motion pictures which were projected and exhibited to the jury, the court refused to permit the films and projector to be taken into the jury room, and this constituted error.

Steven Horvath testified that he was a police officer for the Village of Chicago Ridge at the time of the accident and that he arrived at the scene in a police car at 12:45 a.m. on June 5, 1957. The pavement was dry and the debris from the accident indicated that the impact between the two cars took place on the far left of the left-hand lane, meaning the lane that proceeds in a northeasterly direction. Horvath testified that the debris was collected in the left side or the inside lane. The skid marks of the defendant's vehicle measured 130 feet prior to the impact. Both vehicles had been travelling in a northeasterly direction. After the impact the defendant's vehicle travelled 52 feet, crossing the two lanes of southwesterly traffic and hitting the opposite side of the bridge. The plaintiff's car travelled 20 feet of guardrail impact, struck and went through the guardrail protecting the northeasterly lanes and rolled over for 85 feet. The plaintiff's car tore out 20 feet of guardrail and the defendant's car tore out 10 feet of guardrail. Horvath also testified that the plaintiff's car after striking the guardrail continued on and that he could not say at what distance from that point it was that the automobile tipped over again and rolled over. He didn't remember if he found the car on its side or roof.

Stanley Wing, also a police officer of the Chicago Ridge Police Department, testified that he participated in the investigation of this accident. His testimony was substantially the same as that of Horvath.

Cushman Jordan, Jr. testified on behalf of plaintiff that he had ridden with Frank Fahrforth, Jr., and in his opinion he was a very careful driver. He also stated that the Fahrforth car was in good operating condition in June, 1957.

John F. Peicle, one witness called by the defendant, testified that there was damage to the left rear side of the Mercury (plaintiff's car) and that the only damage to the Plymouth (defendant's car) was to the front.

It was argued first that the circumstantial evidence introduced by the plaintiff was just as consistent with liability as with non-liability and therefore plaintiff failed to sustain his burden of proof. It is true that the happening of an accident, of itself, does not raise any presumption of negligence on the part of the defendant. Rotche v. Buick Motor Co., 358 Ill. 507, 193 N.E. 529.

It is argued by the defendant that the testimony of the police officers showed that both the plaintiff and the defendant were travelling in the same direction and that the impact took place in the left-hand northeast bound lane of the Southwest Highway; that although there were 130 feet of skid marks made by defendant's car prior to its impact with plaintiff's car, and although the damage to plaintiff's vehicle was on the left rear side, and although after the impact the plaintiff's car travelled 20 feet, tore out 20 feet of guardrail and continued to roll over for an additional 85 feet, that one reasonable explanation for the accident cannot be inferred from the evidence. The gist of this argument is that the testimony of damage to the plaintiff's car relates to the left rear side, and the defendant argues that the plaintiff must have been crossing over from the outside to the inside lane of north bound travel in order for plaintiff's car to have been struck on the left rear side. Plaintiff's Exhibit 4 shows the rear end and a portion of the left side of plaintiff's automobile. The trunk is partially open and indents appear to the left of center on the rear of the trunk cover. The side of the left rear fender bulges out over the left rear wheel, from which the inference could be drawn that the rear bumper of the plaintiff's car had been pushed into the left rear fender, causing it to bulge out and away from the car. In addition, the rear end of the left rear fender, which extends above the taillight, is shown to have been pushed in from the rear. The defendant in support of his contention cites Coulson v. Discerns, 329 Ill. App. 28, 66 N.E.2d 728, and Pure Torpedo Corp. v. Nation, 327 Ill. App. 28, 63 N.E.2d 600. In Pure Torpedo Corp., supra, the court at page 39 said:

"A fact cannot reasonably be inferred from evidence when the existence of another fact inconsistent with the first can be from the same evidence inferred with equal certainty. A fact cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can reasonably be drawn from them."

We do not feel that the rule laid down in either Coulson or Pure Torpedo Corp., supra, applies to the instant case. The evidence indicates that the plaintiff was struck from behind after the defendant had applied his brakes and his car had skidded 130 feet before catching and striking the plaintiff's car. There was no evidence offered by either the plaintiff or the defendant to indicate the speed at which the car was travelling which skidded 130 feet. However, such evidence would be of little value in a case such as this, because the impact with plaintiff's car did not even stop the defendant's car, which continued on for 52 feet crossing the two lanes of southeasterly traffic and tore out 10 feet of guardrail before coming to rest.

In Young v. Patrick, 323 Ill. 200, 153 N.E. 623, a case where there were no eyewitnesses to the accident, ...


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