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Vincent v. Wesolowski

OCTOBER 13, 1967.

DELIMA VINCENT, PLAINTIFF-APPELLANT,

v.

CASMIR W. WESOLOWSKI, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, Law Division; the Hon. WALTER J. KOWALSKI, Judge, presiding. Affirmed.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

In this personal injury action the plaintiff appeals from a judgment entered upon a jury finding for the defendant. The principal issues are whether: (1) certain statements in the defendant's pretrial deposition were judicial admissions which required the trial court to direct a verdict for the plaintiff or to enter judgment n.o.v. for her, (2) the verdict was against the manifest weight of the evidence, (3) the trial court erred in instructing the jury and (4) the court erred in limiting the closing argument of the plaintiff's attorney.

On June 6, 1964, the plaintiff, Delima Vincent, was riding in the rear seat of an automobile driven by her sister, Alma Mueller. The vehicle was headed north on Colfax Avenue and Mrs. Mueller intended to turn left on 95th Street. She testified that: Colfax has two lanes for northbound traffic and two for southbound; her vehicle was in the lane near the center of the street from the time she crossed 106th Street until the collision occurred; a half block from 95th Street she signaled her intention to turn; just as she came to 95th Street the traffic control light changed from red to green and she drove up closer to the middle of the intersection; she stopped to allow southbound traffic to pass and several seconds later the defendant's vehicle struck the left rear and side of her automobile. Her testimony was corroborated by the plaintiff.

The defendant's version of the accident was substantially different. He testified that: he was driving north on Colfax; the traffic light was green as he approached 95th Street; his vehicle was in the lane near the center of the street and the Mueller automobile was next to the curb and two car lengths ahead; without signaling, Mrs. Mueller made a sudden left-hand turn; he applied his brakes and swerved to the left and the right front and side of his automobile made contact with the Mueller vehicle.

The plaintiff's first contention is that five statements made by the defendant in a pretrial deposition were judicial admissions which contradicted his trial testimony and necessitated a judgment for her. The statements concerned the speed of the defendant's vehicle, the positions of the two vehicles before and after the accident and the damage to the vehicle in which the plaintiff was riding.

[1-4] A judicial admission is an admission made in the course of a judicial proceeding. See Rosbottom v. Hensley, 61 Ill. App.2d 198, 209 N.E.2d 655 (1965) and Cleary, Handbook of Illinois Evidence, §§ 5.1 and 17.12 (2nd ed 1963). It is evidence against the party making it and substitutes for proof of the facts admitted. Bartolomucci v. Clarke, 60 Ill. App.2d 229, 208 N.E.2d 616 (1965). It is made by a party's deliberate testimony to a concrete fact within his peculiar knowledge; it must be a considered circumstance of the case, not a matter of speculation, inference or opinion. Gauchas v. Chicago Transit Authority, 57 Ill. App.2d 396, 206 N.E.2d 752 (1965). What constitutes a judicial admission must be decided under the circumstances of each case (Hurley v. Phillips, 54 Ill. App.2d 386, 203 N.E.2d 431 (1964)) and before a statement can be held to be such an admission it must be given a meaning consistent with the context in which it is found and must be considered in relation to the other testimony and evidence presented. McCormack v. Haan, 20 Ill.2d 75, 169 N.E.2d 239 (1960); Gauchas v. Chicago Transit Authority, supra.

The first statement said to be a judicial admission related to the speed of the defendant's automobile at the time of the collision. He testified that both cars were going about 15 to 20 miles an hour as they came to 95th Street. The alleged admission followed this series of questions and answers in his pretrial deposition:

Plaintiff's attorney: "How fast was your car moving at the time of the impact?"

Defendant: "That is hard to tell."

Plaintiff's attorney: "Well, what would be your best estimate as to your speed at the time of the impact?"

Defendant's attorney: "If you can estimate?"

Defendant: "Well, we had the green light, I had the right of way to go straight through, there was nothing in my way."

Plaintiff's attorney: "How fast were you going?"

Defendant's attorney: "Twenty-five miles an ...


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