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Leming v. Oltman

OCTOBER 5, 1967.

PAULA SWICKARD LEMING, PLAINTIFF-APPELLEE,

v.

GLENN OLTMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Coles County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding. Affirmed.

TRAPP, J.

Rehearing denied and opinion modified November 2, 1967.

Defendant, Glenn Oltman, appeals from a judgment entered upon a jury verdict in favor of the plaintiff, Paula Swickard Leming, for personal injuries in the amount of $15,875.

It is contended that the trial court erred in refusing to direct a verdict in favor of defendant, in refusing a judgment notwithstanding the verdict and denying his motion for a new trial. Error is also claimed as to certain instructions.

Plaintiff was a guest in an automobile driven by a fellow student, Rudy Ketchie, in an easterly direction on Route 16 between Mattoon and Charleston. As it travelled at a speed of 45-50 miles per hour this car was struck at the left rear by the right front of defendant's vehicle. The highway is a four-lane concrete pavement divided by a median between the respective east and west lanes. At the point of the collision, it extends generally east and west and is described as being essentially straight and level. The night was clear and the pavement was dry.

Following the impact, the Chevrolet in which plaintiff was riding went over the shoulder and striking the bank at the right front fender, turned end for end and rolled one and one-half times. It came to rest on its top with the front pointed to the southwest some 55 yards from the point of impact. Defendant's Chevrolet, as measured by the State Highway Police, travelled 342 feet beyond the Ketchie automobile and 66 feet into a field, as measured from the highway.

We are called upon to consider two aspects of the evidence. The record discloses that the defendant stated upon several occasions that he had apparently fallen asleep: in a statement to a State Policeman at the scene of the accident; in a statement made in the presence of Rudy Ketchie, Ketchie's parents and plaintiff's parents at the Charleston hospital; in a telephone statement to plaintiff while the latter was in the hospital the first week after the accident; in a statement made in answer to written interrogatories filed May 11, 1965, two years after the accident, and in a deposition taken May 22, 1965.

On the trial, defendant repudiated the statements that he had been asleep prior to the accident. Based upon a reflection that the only thing he could then remember after passing the Blaw-Knox factory, about 5 miles west of the scene, defendant reasons that he does not believe he could have been asleep for five miles on a road that has some curves and some dips.

Testimony was elicited hypothetically from Dr. Lewis E. Adkins, a general practitioner in Charleston, Illinois, that a person in defendant's circumstances who had received a blow on the head "very possibly could have been suffering from retrograde post-traumatic amnesia."

Upon this aspect of the evidence, the jury could well have found that defendant was asleep at the time of the impact. There is nothing inconsistent with being asleep at the time of an accident and being a victim of retrograde post-traumatic amnesia, if, in fact, he was. The hypothetical question that was asked included an assumption that the person was not drowsy. The jury could have found that the prior statements of the defendant, that he was, or apparently was, asleep were correct, and that the hypothetical question to the doctor was therefore inapplicable. Amnesia would not establish what actually happened, but only that defendant could not account for the events. If he was not asleep or drowsy, the jury could properly have concluded from the facts in evidence that defendant was negligent.

Plaintiff's host, Rudy Ketchie, testified that the lights of the car were lighted. He was not asked, either on direct or cross-examination, concerning the taillights as distinguished from the headlights. Plaintiff testified that she had driven earlier that evening, that the lights worked and the turn signals functioned. She also testified that immediately prior to the impact, the car in which she was riding had its lights on. She did testify that she could not state from actual observation that the taillights of the car in which she was riding were lighted at the time of collision. By reason of such record, defendant argues that there was no evidence of negligence on the part of the defendant justifying the submission of the case to the jury.

The jury could well find the action of the defendant in overtaking and running into the rear of the automobile in which plaintiff was riding to be negligent, even if its taillights were not lighted. For all practical purposes, the control of the situation was with the defendant and, assuming that the driver of plaintiff's car was guilty of contributory negligence, it would be immaterial to plaintiff's right to recover unless such negligence could be found to be the sole cause of the collision. We cannot say, as a matter of law, that under such circumstances, the absence of taillights is necessarily the sole cause of the collision. Again, there is actually no evidence that the lead car's taillights were not working. When Ketchie testified that his lights were on, it was within the province of defendant's counsel to inquire whether he observed both front lights and taillights. The jury had evidence, which taken most favorably to the plaintiff would authorize a finding that the lead car's taillights were turned on at the moment of impact.

The trial court did not err in refusing to direct a verdict for the defendant, or in refusing to order a judgment notwithstanding the verdict.

Complaint is made that the jury was informed of the presence of liability insurance in the case, so that the trial court should have granted a motion for mistrial. An affidavit was filed that one Thomas Burke, who was not connected with the case in any way, spoke to defendant's counsel in a restaurant during the trial at a point where four jurors could have heard him, and said, "Well, Mr. Horsley, I know you're putting up a good fight for your insurance company." Mr. Burke's testimony varies somewhat. He stated that he was talking to a friend who asked him if there was any money to be made fighting an insurance company and he, Mr. Burke, said to his friend, "I don't know, I suggest you ask Mr. Horsley." Mr. Burke then said in a loud voice to Mr. Horsley, ...


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