Appeal from the Circuit Court of Cook County, Law Division;
the Hon. IRWIN N. COHEN, Judge, presiding. Affirmed in part,
reversed in part.
Two separate appeals are involved. Steven Heineman, defendant, appeals from a judgment for $49,387.55 in favor of Robert Saltzman, plaintiff, in a personal injury suit. Third-party defendants, Michael I. Brown and Joel Kleinfeld appeal from a judgment against each third-party defendant in favor of third-party plaintiff, Steven Heineman, in the amount of $1,481.62. Since the judgments against the third-party defendants are judgments for contribution, all judgments would be affected by defendant's contention that there was not sufficient evidence of the defendant's involvement in the accident to submit the cause to the jury. The sole issue of fact on this question is whether the boat which struck the plaintiff was the boat operated by the defendant. A review of the evidence submitted upon this issue is necessary.
Plaintiff, with four friends, third-party defendants Brown, Shaffer and Kleinfeld, together with one Heuberger had rented a boat on Lake Geneva from which they took turns in water skiing. While plaintiff was in the water adjusting the skis two of the group asked to go ashore. Plaintiff was left with his skis and life jacket some 700 yards from the north shore and 200 yards from the west shore. While waiting in the water plaintiff was struck by a boat coming from the southeast and proceeding west toward Fontana. Plaintiff was rescued by the occupants of a nearby third party which had a skier in the water. Brown and Shaffer returned from the trip to the shore but could not find plaintiff. After searching for a few minutes they returned to Fontana.
The defendant, Heineman, was driving a Century Coronado inboard boat from the east end of the lake from Fontana at a speed of about 25 miles per hour. He was accompanied by Edelston, Stoll and Kagel. Their testimony agreed that they did not notice any bump or noise suggesting that the boat had struck an object in the water as they travelled this course. They had experienced instances when the boat hit logs or objects in the water.
The occupants of the boat which rescued plaintiff included three adults and a boy. Milne, who operated the boat, observed plaintiff in the water and the fact that the companions left in the boat. He also observed a boat coming from the southeast directly upon plaintiff, and Milne and those in his boat yelled and waved their arms in an attempt to attract the attention of those in the boat approaching plaintiff in the water. Milne observed the plaintiff in the water attempting to wave away the approaching boat and tried to raise a ski in the water to attract attention. Finally plaintiff made a dive in an apparent attempt to avoid the approaching boat, but it struck him. Milne observed that the two men in this boat did not look back but proceeded west at the same speed.
Mulligan, a companion of Milne, was a skier in the water. He also observed the approach of the boat from the southeast and the occupants of his boat waved their arms at something. The Milne boat returned to pick up Mulligan after rescuing the plaintiff.
Milne, Mulligan and Abe, the third adult, described the offending boat in substantially similar terms as an inboard boat approximately 20 feet long with white and brown or mahogany finish. Mulligan described a white dart design, which is corroborated, as a design on the boat defendant was operating. Plaintiff described the markings on the boat which struck him in similar terms.
When the Milne party, with the injured plaintiff, approached a pier at Fontana, they saw a Century Coronado tied up and refueling at the pier. It is not denied that one or more members of defendant's party were accused of striking a skier in the water by a person or persons in the Milne boat as it came to the pier.
There is evidence that another Century boat of substantially the same color and size was tied up at the Gordie pier some 100 feet away. It does not appear in the record whether this boat also had the dart design described by the witnesses. Such design was not common to all Century boats. Huss, who operated the pier servicing the boats at issue, could not recall how long the second Coronado boat had been tied up at the Gordie pier, and he could not recall seeing any person near it.
While the testimony of witnesses concerning an accident can be expected to vary to a considerable degree and even to be in conflict in material respects, we think it is clear from the foregoing review that taking the reasonable inferences most favorable to the plaintiff, there was sufficient evidence from which the jury could find that the boat which struck the plaintiff was the boat driven by defendant, Steven Heineman.
The positive indications are that within a few minutes after defendant docked at the Fontana pier to refuel, a rescue boat arrived at the same pier with the injured plaintiff, who, at most, had been several hundred yards from this pier, containing three adult rescuers who were eyewitnesses to the fact that plaintiff was struck by a Century Coronado with an inboard motor with identical markings of the boat driven by defendant which boat was travelling in the same direction as defendant was driving. The scene described by the witnesses was not a crowded scene. Only one boat, and that travelling in the direction defendant travelled, was described. The marine pier attendant watched defendant come in, but does not state that others came in at that time. The boat defendant drove is the only one known to be travelling at the right place in the right direction at the right time with the right markings.
Neither do we find the fact that the eyewitnesses only observed one or two persons in the offending boat, when there were in fact four persons in the boat a serious obstacle to identification because two of the persons were lying down upon the seats and plaintiff, Saltzman, and eyewitnesses Milne and Mulligan saw two boys in the cockpit, which is where defendant and Steven Stoll were.
We do not think the jury was required to consider the observation of the presence of such a boat at the pier south of Duncan's pier some time after the injured man was brought ashore as a complete obstacle to identification of the boat driven by the defendant as the offending boat. Where the known circumstances fit, the jury is not ...