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Lilegdon v. Hanuska

JULY 17, 1967.

JOHN LILEGDON, ET AL., PLAINTIFFS-APPELLANTS,

v.

HARRY HANUSKA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. THOMAS H. FITZGERALD, Judge, presiding. Affirmed.

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

Rehearing denied August 11, 1967.

Plaintiffs appeal from a jury verdict and judgment for defendant in their action for personal injuries and property damage allegedly incurred by them as a result of an intersection collision.

On appeal, plaintiffs contend the trial court committed prejudicial error (1) in giving the jury instructions on "imputed negligence" and "right of way," and (2) in permitting the defendant's doctor to testify as to a physical examination made of the plaintiff when no timely proffer of the report had been made to the plaintiffs' attorney. Plaintiffs also contend that the verdict was contrary to the manifest weight of the evidence.

Late in the afternoon of December 30, 1961, plaintiffs (husband and wife) were in an automobile being operated by plaintiff John Lilegdon. Mrs. Estelle Lilegdon was in the front seat with her husband, and their destination was a National Tea store located at the northeast corner of 50th Avenue and 22nd Street. While plaintiffs were in the process of making a left-hand turn at that intersection, defendant's car collided with the right rear side of plaintiffs' car. Mrs. Lilegdon suffered physical injuries, and a considerable portion of the trial involved testimony by experts considering the causal relationship between the trauma suffered by Mrs. Lilegdon and subsequent surgery.

Plaintiff John Lilegdon testified that just before the occurrence they were on 22nd Street, moving in an easterly direction. When they arrived at the intersection of 50th and 22nd Street, the traffic signal for east and westbound lanes was red, so when he approached 50th Avenue he "pulled into the cutout of the highway indicating that I am going to be making a left turn from the eastbound lane on Cermak Road to 50th Avenue going north." They waited for the east and westbound traffic light, and "I proceeded and pulled slowly into the intersection . . . on an angle facing northeasterly, and I stopped there at a standstill. . . . [T]here were three cars that were waiting to get into the National Tea lot on 50th Avenue. If I would have proceeded across the intersection, my car would be protruding into the westbound lane of Cermak Road. . . . [T]here were no cars proceeding in a westerly direction." He remained stopped for seven to ten seconds, and "I sort of glanced sideways, and I thought I saw lights flashing at the side of my car, and then I felt an impact hitting my car, . . . the right side of my car, the rear door and the wheel portion of the rear wheel, and the impact threw my car across into the westbound lane." He was unable to estimate the speed of the other vehicle but characterized it as "fast." After the impact his car was facing southeast in the second westbound lane from the north curb of 22nd Street, about 10 to 15 feet west of 50th Avenue.

Mrs. Lilegdon testified that as they approached the intersection of 22nd and 50th Avenue, they pulled into the cutoff; the light was red when they arrived there, and they waited to make their turn; when the light changed, they "inched over into the intersection," and she did not recall anything happening after that. The next thing she knew, "I know I was lying someplace, but just where it was, I couldn't say." She further testified she was taken to a hospital and related the details of her treatment and subsequent condition.

A witness for plaintiffs, Joseph Grachen, testified he saw the Lilegdon station wagon as it was waiting in the cutout to make a left-hand turn. "It was facing more towards the north than the east," and it had been coming east on 22nd Street. The other vehicle was proceeding west "5 or 10 feet on the south side of the [median] strip going west," and in the side of the street for vehicles going in an easterly direction. The vehicle that was going in a westerly direction "rammed into the right rear of the Ford station wagon," which was standing still. The speed of the westbound vehicle was about 20 to 25 miles an hour. Grachen did not identify himself to anyone at the scene and made contact with plaintiffs by telephone three or four days after the occurrence. On cross-examination, he testified that the traffic light was green for east and west traffic, and as far as he could recall, "there was no eastbound traffic at the moment of impact."

Defendant was called as an adverse witness. He was employed by the CTA as a bus driver and used 22nd Street daily and was familiar with it. He testified that it was a Saturday afternoon, and he had had "two drinks" of whiskey in celebration of a deal he had made for the exchange of his automobile, and he began to "head home." As he proceeded in a westerly direction down 22nd Street and approached the intersection of 50th and 22nd, it was sleeting and snowing, and he had his headlights on. He had been going this route periodically for about seven years. He saw the other vehicle before the impact, and they were the only two cars on the street. The other vehicle was going 15 miles an hour, as was defendant. When the other vehicle allegedly made its left turn in front of him, it was from the lane just to the right of the "cutout lane," and it was directly "in front of me.' He applied his brakes before the impact, and he did not think that the other vehicle applied its brakes. When he applied his brakes his speed was about 15 miles an hour, as was the other car, which was going "just about a northeasterly direction." In response to the question, "Do you recall having driven in a westerly direction on the side of the center divider for eastbound traffic?" defendant replied, "No, sir. I was in the proper lane." He was further examined regarding his prior testimony on deposition.

Among the witnesses called for defendant was Dr. David Petty, who had conducted a physical examination of Estelle Lilegdon. He was of the opinion that she made a complete recovery from her injuries, and that it was impossible, therefore, to have been any causal relationship between the trauma suffered and her subsequent hysterectomy. Plaintiffs objected to the testimony of Dr. Petty on the ground that they had not been furnished with a copy of the doctor's report ten days prior to trial in compliance with the rules of the Supreme Court.

Initially, we consider the contention of plaintiffs that it was error for the court to give to the jury the following instruction:

"In considering the case of Estelle Lilegdon you must first determine whether she was an owner of the vehicle in which she was riding and that the ride was for the mutual benefit of herself and her driver. If you determine this to be the fact, then you are instructed that the negligence, if any, of the driver is imputed to her.

"On the other hand, if you find that she was not the owner of the vehicle in which she was riding, or that the ride was not for the mutual benefit for herself and the driver, then the negligence, if any, of the driver is not imputed to her."

John Lilegdon testified that he was the owner of the automobile which he was driving. Mrs. Estelle Lilegdon testified that the car was owned by her and her husband, and on deposition she had testified that the automobile was "my husband's and mine" and that it was in "both" of their ...


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