Appeal from the Circuit Court of Cook County; the Hon. IRWIN
COHEN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
This is an appeal from separate judgments of $25,000 and $1,424 entered pursuant to two respective counts of a wrongful death action. The judgments were entered by the court below sitting without a jury against the defendants-appellants, Checker Taxi Company, Inc., and Juan Berrios. After entry of said judgments, defendants made motions to set aside and vacate the judgments and enter judgment in their favor, or alternatively, to grant a new trial, both of which were denied, and from which this appeal is taken.
No questions are raised on this appeal relative to the pleadings. It is defendants' sole theory on appeal that a reversal is required because of plaintiff's failure to prove freedom from contributory negligence by the decedent. Correspondingly, defendants contend that the court below erred in disregarding the testimony of Jane Swett, the only eyewitness to the actual occurrence.
It is plaintiff's theory of the case (1) that the question of contributory negligence is one of fact, not of law, and the trial judge's determination of the issue was not contrary to the manifest weight of the evidence, and (2) that Jane Swett's testimony was properly discredited by the trial judge, it having been contradicted on several material points by other credible testimony.
The occurrence which gave rise to this action was a car-pedestrian collision in the north crosswalk of the intersection of Erie Street and Fairbanks Court in the City of Chicago. (Erie Street runs east-west, and Fairbanks runs north-south.) The uncontested portions of the testimony adduced at trial showed that the decedent, Roy D. Lobravico, when last seen by his wife on the morning of the incident, June 14, 1961, was in good state of physical health and mental alertness. He was 50 years old, five feet, seven inches tall, and possessed good eyesight and hearing. Decedent was a father and responsible provider for his household. He generally performed the ordinary tasks of a man caring for his family and home. On the day in question, decedent left his place of employment at about 4:30 p.m. He had been a chief X-ray technician for about 27 years, and had performed his tasks that day in the customary fashion. It was daylight, the streets were dry and the visibility good. The traffic in the vicinity was categorized as "light." Decedent walked in a westerly direction on the north side of Erie Street.
The intersection he approached was that of Erie and Fairbanks where there were no buildings, foliage, or the like which would have obstructed the view of his approach. Fairbanks Court, at this intersection, is unencumbered by any traffic control signals. Traffic on Erie Street, however, is obliged to honor a stop sign. The maximum speed limit on Fairbanks Court was 30 miles per hour. Permissible crosswalks were indicated at each corner by painted white lines.
Decedent, as he crossed Fairbanks Court, was within the provided crosswalk margins. He entered Fairbanks Court from the north-east corner of the intersection. While so crossing, a collision took place between decedent and defendant-Checker's vehicle which was then being driven by defendant-Berrios. The vehicle had been traveling in a northerly direction on Fairbanks Court. Two days subsequent, decedent expired as a result of the injuries thereby sustained. This wrongful death action was thereafter instituted by his surviving spouse, Virginia, as administratrix of his estate. The circumstances surrounding the events which immediately preceded and followed the actual impact, as they pertain to the single question of contributory negligence, are much controverted and will be hereafter set out in detail.
Defendant-Berrios was ruled incompetent to testify under the Dead Man's Statute when called as a witness. The only witness who testified in defendants' behalf was Jane P. Swett, a then rear seat passenger in the taxicab which was involved in the collision. She was being taken to a nearby hospital and was the only eyewitness to the events which immediately preceded the impact. She never appeared at trial. Her testimony was read into the record from an evidence deposition which had been taken in New York on August 6, 1965.
Mrs. Swett fixed the vehicle's speed at about 15 miles per hour, stating that the speed was then reduced to approximately 10 miles per hour as it entered the intersection of Erie Street. She testified that she saw the decedent ahead standing on the northeast corner of the intersection. She explained that suddenly decedent walked forward, into the right-hand side of the taxi, his head striking the extreme right corner of the windshield. The witness stated that she thought the man's head was bowed down, apparently preoccupied. Mrs. Swett, at this juncture, was shown Plaintiff's Exhibits 2 and 3 which were two photographs of the vehicle in question. The photographs showed a shattered right portion of the windshield as well as dents in the right front door and front bumper. She stated that the photographs accurately portrayed the vehicle as it existed immediately after the impact. She thereafter attributed the shattered windshield to the contact it made with decedent's head. On impact, the witness stated, the decedent fell right over backwards and hit his head on the curb. She claimed that there was no movement of the body through the air. On cross-examination, Mrs. Swett said she did not recall seeing or passing a CTA bus stopped at the southeast corner of the intersection. She stated that she did not recall hearing the brakes of the taxi screech after the impact, but that she did remember the vehicle stopping suddenly in a span of 10 to 15 feet after such collision.
Although no other persons were called relative to the events which immediately preceded the occurrence, plaintiff called three witnesses (Carol Spancher, Jane Haw, and Gale Noonan) who testified as to events they witnessed immediately after hearing "the noise" or "thud." All were in close proximity to the collision. Spancher was approximately 50 to 75 feet behind decedent walking in the same direction. Haw and Noonan were each waiting for buses on the southeast and northwest corners of the intersection respectively. Their testimony, as to several material factors, was in contradiction with that of Mrs. Swett.
Each said the traffic was light and that they could not recall hearing the screeching of brakes or the sound of a horn. Mrs. Haw testified that as she boarded a stopped bus on the southeast corner, she saw defendants' taxi coming fast and pass the bus. She said the bus was positioned about three feet away from the east curb at the time, and that the taxicab passed the bus while close to the center of Fairbanks Court. Mrs. Noonan recalled seeing a bus stopped at this corner just before the collision. Both Spancher and Noonan stated that the taxi was going about 20 to 30 miles per hour when they saw it. Mrs. Haw categorized it as traveling "fast." Both Spancher and Noonan stated they saw decedent's body fly in the air upon impact. Mrs. Spancher placed the body six to eight feet in the air above the crosswalk. Mrs. Noonan placed the body in the air above the car's hood and close to its windshield. All three witnesses agreed that the taxi did not come to a stop until approximately a half of a block past the point of impact. Likewise, all three placed the body in the street after impact. Mrs. Noonan stated the body landed north of the crosswalk. Mrs. Spancher stated that the body lay with its head three feet west of the east curb, the balance of the torso extending to the west. Mrs. Noonan remarked that when she first heard the noise and looked up, the taxi was entirely north of the crosswalk in which decedent had been walking.
From the conflicting testimony adduced, we feel the court was not in error in discrediting the testimony of defendants' only witness, even though her eyewitness account was the only one bearing directly on the events immediately preceding the impact. Mrs. Swett's testimony was directly contradicted in five material respects by the corroborated testimony of three of plaintiff's witnesses; to wit, (1) that the body did not fly up into the air on impact, (2) the position of the body after impact, (3) the speed of the vehicle as it traversed the intersection, (4) the distance the vehicle travelled before allegedly coming to a "sudden stop" after the impact, and (5) her failure to recall seeing or passing a stopped CTA bus at the southeast corner, because, by her own admission, she had been thinking about going to the hospital.
Her evidence deposition, though entitled to equal weight had she testified in person, was taken more than four years after the date of the collision thereby compounding the questionable reliability of her narration. Mrs. Swett's claim that decedent walked into the taxi's windshield further strains the believability of her testimony. Physical limits dictate that a man five feet, seven inches tall could not plunge his head into an automobile windshield unless the upper half of his body were slumped forward considerably as he walked. Decedent had no malady which would suggest he walked in this manner. Her testimony, though direct, was irreconcilable with the accounts of three other witnesses as well as the physical circumstances, and hence could properly be discredited. The rule is that positive direct testimony may be contradicted and discredited by circumstantial evidence, discrepancies, omissions, or the inherent improbability of the testimony itself. Stephens v. Hoffman, 275 Ill. 497, 114 NE 142 (1916); Sutherland v. Guccione, 8 Ill. App.2d 201, 131 N.E.2d 130 (1955).
Defendants argue that, assuming Mrs. Swett's testimony was properly discredited, there still exists no independent proof that decedent was in the exercise of due care at and immediately prior to the impact. Defendants point out that plaintiff's entire case relates to events subsequent to the collision. In addition, they contend that plaintiff seeks to establish due care by reference to defendant-Berrios' conduct prior to the impact and not that of decedent. Defendants maintain that in such a situation decedent is guilty of contributory negligence as a matter of law, relying upon the cases of Russell v. Richardson, 308 ...