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Plank v. Holman

APRIL 11, 1969.

MAXINE M. PLANK, EXECUTRIX OF THE ESTATE OF LAURENCE M. PLANK, DECEASED, PLAINTIFF-APPELLEE,

v.

THOMAS EARL HOLMAN, DEFENDANT-APPELLANT, AND MYRTLE R. WALGREEN AND ELSIE RAYFIELD, ADMINISTRATRIX OF THE ESTATE OF RALPH R. RAYFIELD, DECEASED, DEFENDANTS-CROSS APPELLANTS.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN A. KRAUSE, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is a wrongful death action brought by Maxine M. Plank, Executrix of the Estate of Laurence M. Plank, against Thomas Earl Holman, Myrtle R. Walgreen and Elsie Rayfield, Administratrix of the Estate of Ralph R. Rayfield. The jury returned a verdict for the plaintiff, on which judgment was entered, and the defendants appealed.

At the time of the accident, Laurence M. Plank was driving a 1963 Buick in a westerly direction along U.S. Route No. 30 at a point about one mile west of its intersection with Illinois Route No. 47. The highway, at this place, had two lanes. At the site of the accident, there was a yellow, no-passing stripe for the westbound traffic, and the highway, from east to west, was on a slight upward grade, toward the crest of a hill. The plaintiff, Maxine M. Plank, was driving another car, and was following approximately eight to nine-car lengths behind her husband's car. There were no cars between them.

The defendant, Holman, was driving a 1964 Mustang in an easterly direction along the highway. A passenger was with him, who later and prior to the time of the trial, became his wife. A 1964 Lincoln, also traveling in an easterly direction, was following the Mustang. This car was driven by the decedent, Ralph R. Rayfield, the chauffeur for the defendant, Myrtle R. Walgreen. Elsie Rayfield, Administratrix of her husband's estate, was riding in the back seat of the Lincoln.

The defendants, Holman, Walgreen and Rayfield, and also Mrs. Holman, were offered as witnesses. The plaintiff objected by virtue of the provisions of the Dead Man's Act (Ill Rev Stats 1967, c 51, par 2), and they were not permitted to testify.

The plaintiff called the deputy sheriff who investigated the accident, as a witness. He testified concerning the location of the vehicles, and of the various occupants of the cars along the roadway, upon his arrival at the scene of the accident. He stated that when he arrived at the scene, debris, consisting mainly of dirt, glass, and oil or some other liquid, was on the highway in the westbound lane of traffic; that the Buick was facing in a westerly direction, completely in the westbound lane with its right rear wheel perhaps on the shoulder of the westbound lane; that the Lincoln was swung around, facing in a northwesterly direction, the front half being in the westbound lane of traffic and the rear half being in the eastbound lane of traffic; and that the Lincoln was ten to fifteen feet east of the Buick. He further testified that the Mustang was some twenty feet east of the Lincoln, partly on the shoulder on the eastbound side of the highway; and that he observed and measured, skid marks.

The plaintiff next called Mr. Willgeroth, who arrived at the scene shortly after the accident. He did not observe any skid marks at that particular time, but his family remarked about them. The next day, he returned to the scene and observed the skid marks: the heaviest and most obvious ones were in the eastbound lanes. He testified that they seemed to swerve into the west lane; and that some lesser skid marks were in the westbound lane.

A witness was then called by the plaintiff, who testified to the careful driving habits of the decedent, Laurence M. Plank.

The plaintiff then called William Billings, a reconstruction expert to testify. Much of the dispute on this appeal relates to his testimony. He testified as to his training, background and experience in the field; that he had reconstructed the accident in question, and in doing so, he employed photographs of the cars involved, photographs of the highway at the scene of the accident, and photographs taken by him at the scene at a subsequent date. He testified as to his personal observation of the Buick and to the measurements and other observations made by him at the scene of the accident at a subsequent date. He testified in detail with reference to the various steps involved in his reconstruction of the accident.

The witness gave his opinion, based upon his reconstruction, of the manner in which the accident took place. It was his opinion that the eastbound Mustang was overtaking and passing the eastbound Lincoln; that the driver of the Mustang (Holman) observed the closeness of the westbound Buick and turned to the right and braked to get back into the eastbound lane in front of the Lincoln; that, at that point, the driver of the Lincoln, in order to avoid a rear-end collision, turned to the left and applied his brakes, at which point the front of the Lincoln and the rear of the Mustang collided; and that the Lincoln then proceeded crossways into the westbound lane, where it was struck at its right front fender by the front of the Buick.

The defendants called Mrs. Arnold, who was traveling west along the same highway, as their first witness. She testified that she first heard a crash and then saw the Lincoln, in the air, going from the eastbound into the westbound lane. She was not able to describe anything that happened prior to the sound of the crash. Next, they called Mrs. Houston. She testified that she was riding in a car proceeding westerly along the same route; that she looked up and saw the two cars that had collided, and that when she saw them they were up in the air "like a peak."

The defendants also called Maxine M. Plank, under section 60 of the Civil Practice Act. She testified that she was driving about eight- to nine-car lengths behind her husband's car; that there were no cars between them; and that she saw her husband's car and the Lincoln come together. She also stated that she did not see either the Lincoln or the Buick contact the Mustang; that she did not see any brake lights on her husband's car prior to the collision, and that, "Actually I only saw two cars come together at the scene of the accident — the Buick and the Lincoln." She stated that she did not see the Lincoln at any time prior to the actual impact.

The defendants made offers of proof as to the nature of the testimony of those who were barred from ...


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