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Pozdro v. Dynowski

MAY 1, 1967.

HERBERT M. POZDRO, ADMINISTRATOR OF THE ESTATE OF CAROL ROSE POZDRO AND OF THE ESTATE OF ROBERT ALLAN POZDRO, PLAINTIFF-APPELLANT,

v.

JOHN DYNOWSKI, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. GEORGE L. QUILICI, Judge, presiding. Judgment affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This action was brought by Herbert M. Pozdro, as Administrator of the Estates of his two deceased children, under the Illinois Wrongful Death Act, (Ill Rev Stats 1965, c 70, §§ 1-2) to recover damages for their deaths in an automobile accident allegedly due to defendant's negligence. The jury trial resulted in a verdict in favor of the defendant, John Leon Dynowski, and against both the plaintiff-Administrator and the occupants of a third car. Judgment was entered on the verdict for defendant and Herbert M. Pozdro, Administrator, appeals.

The collision occurred on July 9, 1960, at about 8:00 p.m. on Route No. 53, which runs north-south where Industrial Road enters from the east. Mary R. Pozdro was driving south on Route No. 53 with Carol and Robert Pozdro, the deceased children, as passengers. Mrs. Pozdro was attempting a left-hand turn into Industrial Road when struck by defendant's automobile which was proceeding north on the same highway.

Plaintiff contends that (1) the verdict and judgment are against the manifest weight of the evidence; (2) the court erred in giving certain instructions to the jury; and (3) defense counsel committed error by going beyond the record of the trial in his closing argument to the jury.

The plaintiff called the defendant, John Dynowski, under section 60 of the Civil Practice Act. He testified that he and his uncle, Casimer Dynowski, had decided to go fishing that evening, and on the way they had a glass of beer and bought a six-pack of beer which was placed in the back seat of the car. He said that he was driving north on a two-lane highway, Route No. 53, at 40 to 45 miles per hour, that he had his lights on because it was dusk, that the visibility was clear and no cars were in front of him, and that he could have stopped his car within 40 to 45 feet. He said he first saw the Pozdro car a block north of Industrial Road, and "When I was about 30 to 35 feet from the intersection when I seen Mrs. Pozdro. Then she turned in front of me and that was all I remember." He testified further that she appeared to be driving 5 to 10 miles an hour slower than he was, but he said there was no indication that she was slowing down to make the left-hand turn. He said he didn't slow up, but applied his brakes and felt them catching just before he hit her.

Casimer Dynowski, defendant's uncle, was also called as a witness by the plaintiff under section 60 and he testified that they had a glass of beer and bought a six-pack of beer to go fishing with. He said he didn't remember any part of the accident.

Police Sergeant James Ruggio, Jr. testified that he was summoned by radio to the accident scene and arrived at 8:22 p.m. He prepared a drawing of the scene at that time and said that the road is drawn to a scale of one inch to 20 feet, but that the vehicles were not to scale. He said he found four Budweiser cans in the Dynowski car, three full small cans and one larger empty can. When questioned on recross-examination he denied finding a full six-pack in the car and didn't remember testifying at the Coroner's Inquest that a full six-pack was found or that the empty cans were rusty and dirty. He said he smelled no odor in the opened cans.

Daniel Salberg testified that he, his wife, the Culpeppers and Kellys were driving in a southerly direction about 40 miles per hour on Route No. 53, about 200 feet behind the Pozdro car, which he said slowed down to 15 miles per hour before it made a normal left-hand turn on Industrial Road. Previous to this he saw defendant's car, but could not determine the speed. He said the Pozdro car was in the middle of Industrial Road at the time of the impact and the defendant's car careened off the Pozdro car causing the back end to strike him head-on. He estimated that the defendant was traveling about 80 miles an hour after the impact. He placed the Pozdro car in the middle of the north lane at the time of the collision. On cross-examination he said he did not have an opinion of Dynowski's speed at the time of impact, but he formed an opinion of the speed of defendant's car, "By the damage" and "That and seeing the car," one and one-half months later when he got out of the hospital.

William H. Kelly testified that he was sitting on the front side of the Salberg car. He didn't remember seeing a car in front of them or seeing an automobile making a left-hand turn in front of them. He said when their car was about 100 feet from Industrial Road he noticed another car in the northbound lane, already turning. When asked whether he could determine the speed of defendant's car he answered, "I know it was going very fast. I would say, probably, over seventy-five miles an hour." On cross-examination he was questioned about his testimony on a pretrial deposition. It appears therein that the following questions were asked and answered as follows:

Q. How long would you say you observed the Cadillac (defendant's car) and Chevy (Pozdro car) before they actually collided?

A. One or two seconds.

Q. Do you have an opinion as to the speed at that time of the car that you were in?

A. I would guess around thirty miles an hour.

Q. Do you have an opinion as to the ...


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