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Rose v. B.l. Cartage Co.

MAY 19, 1969.

MARY JOSEPHINE ROSE AND RITA KRILCIC, PLAINTIFFS-APPELLEES,

v.

B.L. CARTAGE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD R. FINNEGAN, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a personal injury action in which plaintiffs (sisters) seek to recover damages for injuries suffered in an intersectional collision in 1954 between an automobile in which they were riding and defendant's truck. A trial in 1961 resulted in a jury verdict for defendant, following which a new trial was granted. A second trial in November 1965 resulted in jury verdicts and judgments in favor of plaintiffs — $100,000 for plaintiff Rose and $20,000 for plaintiff Krilcic. Defendant appeals from both judgments. Defendant does not contest plaintiffs' injuries.

On appeal, defendant contends: (1) that it was error to deny defendant's motion for a directed verdict and judgment notwithstanding the verdict; (2) the verdicts of the jury were against the manifest weight of the evidence; (3) the trial court committed prejudicial trial errors in (a) refusing certain impeachment evidence, (b) injecting itself into the case, (c) allowing plaintiffs to cross-examine their own witness, and (d) admitting certain evidence; (4) the plaintiffs' attorney was guilty of misconduct; (5) the jury was improperly instructed; and (6) the deliberations of the jury were subjected to interference.

The collision occurred at approximately 7:00 p.m. on January 29, 1954, at the intersection of Cicero Avenue and 115th Street, Cook County, Illinois. Plaintiffs' automobile was operated by plaintiff Rose and the tractor-trailer unit, which belonged to defendant, B.L. Cartage Company, was operated by John Poulos. Cicero Avenue was a 4-lane highway running north and south; 115th Street was a 2-lane highway running east and west. Traffic on 115th Street was controlled by stop signs. There was a guardrail parallel to Cicero Avenue on the west side of Cicero, south of 115th Street. West of the guardrail was a gully with water in it, with a culvert south of 115th Street.

The occurrence witnesses included the two plaintiffs, John Poulos (the truck driver), and Bruce Meyers, a motorist who was driving west on 115th Street and entered Cicero from the east.

Plaintiff Rose testified that she was driving a two-tone gray and white Chevrolet east on 115th Street and approached Cicero from the west. She knew there was a stop sign which required eastbound traffic to stop and yield the right-of-way to traffic on Cicero, and that Cicero traffic was not required to stop at 115th Street. She stopped about 10 feet from the west edge of Cicero Avenue, and the right front door of her car was opposite the stop sign. She did not know how far from the west edge of Cicero the stop sign was located, but it was at least 20 feet. Her last recollection was of slowing down and stopping. After being stopped for seconds, her next recollection was coming to in the hospital.

Plaintiff Krilcic testified that when their car stopped the front of the car was about 10 feet from the west edge of Cicero. While in that position she saw headlights of a westbound car on the opposite side of Cicero coming from the east to the west. While the Chevrolet was stopped she was in a sideways position and heard Rose say, "Oh, no." Krilcic then looked ahead and saw what looked like a black wall with red lights across the top coming toward them — "The next thing I recall is coming to in the car. I was on my knees with the steering wheel at the back of my head. . . . While I was in the car I saw my sister on the street. On 115th. She was close to the car." Krilcic could not determine if the object coming toward them was moving straight west, but later stated that it was moving southwest. She also said she was looking straight ahead, which would be east, and her impression was "that this black wall was coming directly toward me to the west. I don't know where it came from."

John Poulos, the truck driver, testified he was traveling south on Cicero Avenue. After stopping for a red light at 111th Street he continued south in the right-hand lane. The highest speed he reached was 25 to 30 miles an hour. He was aware of 115th Street and knew that its traffic had stop signs. When approximately a block away from 115th Street, he saw a vehicle's headlights a block to the west on 115th, and he also saw traffic approaching the intersection from the east. The traffic from the east stopped and proceeded forward into Cicero. One car turned north and one turned south on Cicero. Weeds and debris on the west side of Cicero obstructed his view of eastbound traffic on 115th Street. The marker lights of the truck were on, and he thought that the lower beams of the headlights were on. The truck's right wheels were about 10 inches from the west edge of Cicero as he approached the intersection. The trailer overhangs the wheels approximately two inches.

While approaching the intersection, Poulos' line of travel was the "extreme outside lane," and he did not veer off Cicero at any time before reaching 115th Street. He was looking straight ahead and was watching the car from the east, which was turning south on Cicero, because "I was concerned about that particular automobile drifting into my lane of travel. . . . I was watching the car at the time of the impact." He never saw anything to his right. At the time of the collision, the front of the truck was at the south edge of 115th Street and the impact was to the right and rear of where he was sitting.

Bruce Meyers, a witness for defendant, testified that he was driving an automobile west on 115th Street. As he approached Cicero he observed an eastbound vehicle on the other side of Cicero which was traveling slowly as it approached the intersection. He said: "I noticed that it was going very slowly. It was going slower than I was. I would say that it would have to have been less from the intersection than one hundred feet if my estimate of ten to fifteen miles per hour is correct." Meyers stopped in response to the Cicero stop sign and saw a southbound truck on Cicero 200 to 300 feet north of the intersection. The truck's headlights were illuminated. He observed no northbound traffic so he pulled out on Cicero, heading north. As he was northbound on Cicero, the truck passed him, going south, and at the same time he heard an impact. He looked around and saw sparks underneath the truck, approximately at the right rear drive wheels. At the time he saw the sparks the truck was southbound on Cicero Avenue, but immediately thereafter it "veer[ed] off to the right into a creek just south of there." The truck was traveling 30 to 40 miles per hour, and he did not notice anything unusual about the speed of the truck when he saw it approaching.

Bruce Meyers stopped his car and on foot returned to the scene of the occurrence. He found the Chevrolet facing south off Cicero Avenue with about two feet between the east side of the Chevrolet and the west edge of Cicero. The tractor was 40 to 50 feet west of Cicero facing west-northwest. He saw someone lying on the pavement at about the center of the southbound lanes of Cicero Avenue, 15 feet from the west curb and 5 to 10 feet north of the door of the automobile. "The car was located just south of the intersection, very close to the curb of Cicero Avenue, southbound. It was facing south. It would appear that it was parked very close to the curb."

Neither Rose nor Poulos had any recollection of the position of the vehicles after the occurrence. Poulos testified: "With reference to the impact and the last thing I recall, this car was turning south on Cicero Avenue. That is the last thing I recall." Plaintiff Krilcic did not know of her own knowledge the position of the Chevrolet after the occurrence. Any impression she had concerning its location came from something she had heard from others.

Plaintiffs' witness, James Lindsay, a former State policeman who arrived at 115th and Cicero about 7:15 p.m., testified that the right front of plaintiffs' Chevrolet was against a post which was part of the guardrail running adjacent to the apron of the intersection. The Chevrolet was pointing south-southwest and no part of it was on Cicero Avenue. The car's left rear wheel was on the apron, which is a portion of the concrete built into the four corners of the intersection to facilitate right-turning. The truck was down in the gully, about 150 feet south of 115th Street and about 50 feet west of Cicero. The front end of the truck was possibly 25 feet south and west of the culvert. About 30 or 35 feet of the guardrail along Cicero was broken. He found Mrs. Rose lying on the apron on the southwest corner west of Cicero Avenue and just outside the automobile. Mrs. Krilcic was in the car lying on the front seat floor.

Lindsay stated the windshield of the Chevrolet was broken on both sides. There was slight damage to the right fender and headlight and the left rear fender was caved in. There were some dents in the upper portion of the saddle tank of the truck, which was located just behind the cab of the truck and straddled the frame. There was no damage to the right front fender, bumper or running board of the truck. Lindsay looked for debris around the area to fix a point of impact but found no debris, broken glass or skid marks. He testified: "I did not find any physical evidence upon which I reached any conclusion as to the point of impact. We drew a point on the report where the outside lane of Cicero would be, crossing the south or eastbound lane of 115th. And I indicated that on my report."

A post-collision witness called by plaintiffs was Paul Wolff, who was the manager of defendant at the time of the occurrence and in a retired status at the time of the trial. When he arrived at the scene, the Chevrolet and the tractor had been removed, but the trailer unit was still there. The trailer was facing southwest approximately 100 to 200 feet south of 115th Street and 20 to 30 feet west of Cicero toward the north side of the culvert, with its rear end near Cicero. The trailer was approximately 20 feet long. The only damage to the right side of the tractor was to the right saddle tank which was loose, so that one end of it had dropped down. There was gray paint on indentations, and no evidence of any marks, paint or scratches on the right bumper, fender or running board. There was damage to the left side of the tractor, including the headlight, fender and running board.

A post-collision witness of defendant was Robert Arnold, who had gone to the scene of the occurrence in a tow truck in response to a call. When Arnold arrived, the Chevrolet was in the west southbound lane of Cicero, just south of 115th Street, facing south. The tractor-trailer unit was on top of the culvert south of the intersection and west of Cicero Avenue. The rear of the trailer was on the highway, pointing northeast. The tractor was facing northwest suspended above the slough with its right rear wheel on the culvert. He saw a lady lying on the west lane of Cicero along the east side of the automobile which was parked in the outer lane.

Initially considered is defendant's contention that it was error for the trial court to deny defendant's motions for a directed verdict and for judgment notwithstanding the verdict, because all the evidence, viewed in its aspect most favorable to plaintiffs, so overwhelmingly favored defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967).

In sum, defendant basically contends that the damage to the vehicles and the position of the vehicles after the collision proved conclusively that the Chevrolet was driven into the side of the truck. Defendant asserts there was no testimony that the truck veered in a southwesterly direction from Cicero Avenue before the occurrence. Rose never saw the truck, and Krilcic saw what appeared to be a black wall in front of their car.

Defendant argues that "the plaintiffs' testimony that they were stopped at least ten feet west of Cicero Avenue when the accident occurred is inherently improbable. Plaintiffs' car could not have sustained the type of damage it did under those circumstances. The truck could not have struck the car in that location and then have passed east of the north end of the guardrail as it did. Even in the absence of contradictory evidence a court is not required to accept inherently improbable evidence. Tepper v. Campo, 398 Ill. 496, 504-505, 76 N.E.2d 490, and Michaels v. Midwest Emery Freight Lines, Inc., 81 Ill. App.2d 277, 280, 225 N.E.2d 405. In this case two witnesses testified that the truck was on Cicero Avenue at the time of the impact. The plaintiffs' contention that the truck left Cicero Avenue is supported only by speculation, imagination and conjecture, which are an insufficient base for liability. Plaintiffs allege the truck left Cicero Avenue. They must prove it."

The post-collision physical facts outlined by the defendant are persuasive, but the evidence which must be considered on this contention includes plaintiffs' testimony that their automobile was stopped west of Cicero and did not enter that thoroughfare at any time prior to the impact.

Defendant's driver Poulos said there were two cars from the east which stopped and entered Cicero from the east. One car turned north and the other turned south on Cicero. Poulos was watching the car which had turned south on Cicero. He was concerned about it drifting into his lane of travel, which was the outside lane. He could not move to the left without colliding with the car making the left-hand turn. He said that at the time of the impact he was "looking ahead of me" and was paying attention to that particular vehicle as he crossed the intersection, and he never saw anything to his right. It should be noted here that Meyers testified his was the only vehicle on 115th Street approaching Cicero from the east. He saw no one make a left turn. Meyers saw the Rose car on 115th Street, coming from the west, and noticed that it was traveling very slowly (10 to 15 miles per hour) as it approached Cicero, and it reached the intersection after he did. As he approached Cicero he dimmed his lights and plaintiffs' car did likewise.

Considering all of the evidence in this case, viewed in its aspect most favorable to plaintiffs, we are not persuaded that plaintiffs' testimony is inherently improbable or that the evidence so overwhelmingly favors defendant that "no contrary verdict based on that evidence could ever stand." (37 Ill.2d 494, 510, 229 N.E.2d 504.) We find no error in the court's denial of defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

Next considered is defendant's contention that the verdict of the jury was against the manifest weight of the evidence. We believe the principles to be applied here, in the absence of prejudicial trial errors, are set forth in Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147, 72 N.E.2d 705 (1947):

"`There are many things which a jury observes on the trial in such case that do not appear from the printed record — the appearance of the respective witnesses, their manner of testifying and a great many other circumstances. They are in a much better position in such case to determine the truth of the matter in controversy than a court of review.' . . . Under the law we cannot disturb the verdict of the jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable."

Considering the testimony of the plaintiffs and defendant's driver as to the position of each car immediately prior to the impact, we find that this is not a case in which an opposite conclusion to that of the jury is clearly evident, as is required before this court can disturb the verdict. Griggas v. Clauson, 6 Ill. App.2d 412, 419, 128 N.E.2d 363 (1955).

Next examined is defendant's charge that it was prejudiced by improper rulings by the trial court during the testimony of both plaintiffs. Defendant states that "Krilcic testified that at the time she came to after the accident her sister's car was off of Cicero on 115th Street but that she did not know precisely where it was. She later testified that any knowledge she had concerning the location of the car after the accident came from something that she had heard from others since the accident. The defendant then moved to strike the witness's testimony regarding where the car was after the accident. This motion was denied." Defendant argues that the testimony was not based on Krilcic's personal knowledge but on information related to her by third persons, and her testimony on this issue was hearsay and it was error not to strike it.

On this contention the record shows there was a difference between court and counsel as to the area to be covered by defendant's motion. It is our interpretation of the record that the court endeavored to sustain defendant's motion insofar as it referred to the location of the car and to deny the motion as to where Krilcic located her sister. We find no prejudicial error here.

Defendant further asserts that "on the redirect examination of Rose, plaintiffs' attorney attempted to rehabilitate her by reading from her testimony at the first trial with reference to where she stopped her car at the intersection of 115th Street and Cicero Avenue. In so doing the plaintiffs' attorney read questions and answers from the first trial in which plaintiff Rose located on a photograph marked plaintiffs' Exhibit 8 the position of her automobile. Plaintiffs' Exhibit 8 was marked at the first trial, but was not present at the second trial. None of the testimony from the first trial which was read contained any description of the photograph or any description of where on the photograph the plaintiff indicated that the car had come to a stop. Without the presence of the photograph this testimony from the first trial lacked any probative value. It could not rehabilitate or impeach because it did not tell the jury where the plaintiff had previously testified that the car had stopped. . . . [I]t was improper to permit plaintiffs' counsel to imply that she had so testified."

As to the redirect examination of Mrs. Rose, plaintiffs state that defendant's counsel, "according to his own statement, inquired of plaintiff Rose during cross-examination whether `She at any time testified or pointed out to a photograph that her car was fifteen or twenty feet ahead of the stop sign.' Thus, it became necessary for plaintiffs' counsel to demonstrate nothing more by his reference to lost plaintiffs' Exhibit 8, used during the first trial, than that she had on another occasion identified the location of the place where she had stopped by reference to a photograph." The record indicates that the question of whether Mrs. Rose had "at any time testified or pointed out to a photograph that her car was fifteen or twenty feet ahead of the stop sign" was developed by defendant on cross-examination. In our opinion, plaintiffs' redirect examination of Rose regarding Exhibit 8 [a photograph which was not produced at the second trial] was within the scope of defendant's cross-examination and not improper.

Defendant further states that during the cross-examination of both plaintiffs, defendant sought to show that both had made prior inconsistent statements. The court sustained a number of objections on the ground that the questions were not impeaching. Plaintiff Rose was cross-examined about the shape of the stop sign beside where she had stopped and how long 115th Street had been paved east of Cicero, in order to test her familiarity with 115th Street. Plaintiff Krilcic was cross-examined as to where her sister's car was when she came to in the car and what she saw immediately before the collision.

Defendant's authorities on impeachment include People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26 (1964), where it is said (p 403):

"Impeachment of a witness by a prior contradictory statement is of course an accepted technique. As this court said in People v. Moses, 11 Ill.2d 84, 87: `Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Smith, 391 Ill. 172, 176.) Such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency, and an instruction to the effect should be given upon request. . . . It is therefore not hearsay.'"

Plaintiffs argue that whether matter is impeaching is, in the first instance, a question of law (Reilly Tar & Chemical Corp. v. Lewis, 326 Ill. App. 84, 88, 61 N.E.2d 290 (1942)), and the impeachment must be on a material matter, and it is improper to ask a witness questions on irrelevant matters on cross-examination solely for the purpose of impeaching or contradicting the witness (People v. Kirkwood, 17 Ill.2d 23, 30, 160 N.E.2d 766 (1959)). In Sullivan v. Fawver, 58 Ill. App.2d 37, 46, 206 N.E.2d 492 (1965), it is said:

"The testimony of a witness as to a collateral or immaterial matter is not subject to impeachment by proof of its prior contradictory statements."

We have examined the court's rulings complained of in the cross-examination of both plaintiffs and find no prejudicial error in the trial court's rulings on these questions.

Defendant complains that the trial court improperly denied defendant's request to inspect a report used by Lindsay to refresh his recollection prior to the time of giving testimony and out of court. During the colloquy on this point, plaintiffs' counsel referred to the document as his work product. Under interrogation by the court, Lindsay finally stated that everything he had testified to came out of his "own memory." The trial court denied defendant's request to inspect the report. ...


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