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Sawchyn v. Samlow

APRIL 16, 1969.

ROBERT SAWCHYN, A MINOR, BY JOHN SAWCHYN, HIS FATHER AND NEXT FRIEND, AND JOHN SAWCHYN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,

v.

CLARENCE SAMLOW, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding. Judgment affirmed.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 19, 1969.

Plaintiffs brought suit to recover damages occasioned by the alleged negligence of defendant in the operation of his motor vehicle. Plaintiffs' complaint was in two counts. Count I was to recover personal injuries suffered by Robert Sawchyn (hereinafter referred to as plaintiff), and in Count II John Sawchyn, plaintiff's father, sought to recover for property damage to his automobile. After a bench trial the court entered judgment for defendant. Plaintiff presents the following issues for review: that the trial court, erred in finding for defendant against the manifest weight of the evidence, improperly ruled on objections, deprived plaintiffs of a fair trial and failed to find defendant guilty of negligence as a matter of law.

The collision occurred in the northwest quadrant of the uncontrolled intersection of Melrose and Melvina Streets in the City of Chicago. Melrose runs east and west; Melvina runs north and south. Each is 30 feet wide and located in a residential area. The intervening corner had shrubs and trees, with heavy and low hanging branches. Photographs reveal that this tended to obscure and interfere with a motorist's view.

Plaintiff, then 16 years of age, was operating his father's motor vehicle in a westerly direction on Melrose Avenue. At the time of the collision plaintiff had about eight months' driving experience totaling approximately 800 miles. Defendant was operating his motor vehicle southbound on Melvina Avenue, thus approaching the intersection from plaintiff's right. It was a sunny, dry day. There were two impacts. The first involved the left front portion of defendant's motor vehicle with the right front portion of plaintiff's motor vehicle. The second impact involved the left rear portion of defendant's motor vehicle with the right rear portion of plaintiff's motor vehicle.

Plaintiff's vehicle came to rest 5 or 6 feet south of the center of Melrose, facing west with its rear portion blocking the west crosswalk. It had traveled 16 to 20 feet from the location of the first impact. Defendant's vehicle came to rest facing a westerly direction on Melrose, with the rear of the vehicle still in the northwest quadrant, 1 or 2 feet north of the center of Melrose Avenue. Defendant's vehicle was the only one that made any skid marks. The skid marks started just west of the center of Melvina and north of the north crosswalk of the intersection, continued south into the intersection to within a few feet north of the center of Melrose and then curved sharply westward for about 5 or 6 feet. A police officer testified the skid marks measured 50 feet in total length. There is no evidence as to whether the measurement was made from the rear wheels or front wheels of defendant's vehicle or, as would seem likely from the photograph, from a combination of front and rear wheels. Thirteen photographs depicting views of the intersection, streets, skid marks and the vehicles were placed in evidence. There were no eyewitnesses to the collision other than plaintiff and defendant.

Plaintiff testified that as he approached the intersection he slowed down when he was 50 feet from the east curb of Melvina, to a speed of 15 to 20 miles per hour. He was able to see only 50 to 60 feet north on Melvina, because there was a tree in front of the house on the corner which blocked his view.

Plaintiff testified further that he continued watching in the same direction until he could see between the tree and the house; he then could see the west side of the Melvina pavement for about 150 feet north of the north line of Melrose. He observed no vehicles either parked or in motion on the west side of Melvina. At this time, the front of his vehicle was about 30 feet east of the east curb line of Melvina. Plaintiff looked to his left, that is south, then straight ahead, and began to accelerate through the intersection.

Plaintiff testified that as the front of his vehicle crossed the midline of Melvina he suddenly heard a screeching of brakes and saw out of the side of his eye a black flash that came up from his right side and the impact of the vehicles occurred. Plaintiff testified his vehicle at the moment of impact was moving between 20 to 25 miles per hour and that he never saw defendant's vehicle until he heard the screech of brakes.

Defendant testified he was going south on Melvina at about 20 to 25 miles per hour. When he was about 100 feet from the intersection he glanced left and right and did not observe any traffic. When he came within 50 or 60 feet of the intersection he again looked left and right and did not observe any traffic. As the front of his vehicle approached the north line of the north sidewalk on Melrose he looked to his left and saw plaintiff's vehicle approaching at approximately 40 miles per hour, at which moment his own vehicle was moving at about 15 miles per hour. Defendant observed the plaintiff at this moment was 90 to 80 feet from defendant's vehicle at which time defendant testified he applied his brakes and brought his vehicle to a stop just a fraction of a second before the impact.

Plaintiff charges that the trial court erred in its concept of the law; that skid marks are some evidence of speed when coupled with other evidence of speed, otherwise they are meaningless and should not be considered. Plaintiff argues that the trial court's misconception of the law on this point was manifested during plaintiff's argument, when the court stated:

". . . skid marks by themselves are insufficient to establish speed without expert testimony."

Plaintiff's argument is that he was not endeavoring to establish a fixed rate of speed in violation of any speed laws, but whether defendant at the time of the occurrence was operating his vehicle at a speed greater than was reasonable and proper under existing traffic conditions. Plaintiff argues that 50 feet of skid marks is evidence of defendant's negligence in traveling at a speed that was greater than reasonable and proper and should be accepted as such by the trier of fact without an expert.

Plaintiff argues that the court's concept of the law was tantamount to directing a verdict for defendant. We do not agree with plaintiff. On the motion to vacate and for a new trial, the ...


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