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Warp v. Whitmore

APRIL 7, 1970.

BARBARA WARP AND KATHRYN HECKENBACK, PLAINTIFFS-APPELLEES,

v.

JAMES WHITMORE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. JAMES GEROULIS, Judge, presiding. Judgments affirmed.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

Plaintiffs brought this action to recover for personal injuries sustained by them when the automobile in which they were riding collided with an automobile being operated by defendant. The jury returned verdicts of $8,900 for Barbara Warp and $3,000 for Kathryn Heckenback, and judgments were entered thereon. Defendant appeals.

The mishap occurred about 5:00 p.m. on June 3, 1962, near the intersection of Thorndale Avenue and Sheridan Road in Chicago. Sheridan Road at that point consists of two northbound and two southbound lanes of traffic, and traffic at the intersection is controlled by a signal light.

The plaintiffs were passengers in the front seat of an automobile being driven by Randel Hendrickson in the outer southbound lane of Sheridan Road, to the north of the intersection. Shortly before the collision, Hendrickson switched lanes and was proceeding southerly in the inner lane of traffic at a speed of 15 to 20 miles per hour.

Defendant's automobile had been proceeding in the outer northbound lane of Sheridan Road, to the south of the intersection, and was brought to a halt for the light at the intersection behind another vehicle. The other vehicle accelerated slowly from the light when it turned green, and defendant pulled his vehicle into the inner northbound lane in an effort to pass the vehicle in front, accelerating his vehicle to a speed of between 30 and 50 miles per hour. The pavement was wet and slippery due to a rain which had fallen earlier that day, and as defendant pulled his vehicle into the inner northbound lane, the rear end of the vehicle "fishtailed" across the center line and into the inner southbound lane of traffic in which the Hendrickson vehicle was traveling, resulting in a collision between the two vehicles. Barbara Warp was thrown against the windshield of the Hendrickson vehicle, and Kathryn Heckenback was thrown against the steering wheel and the dashboard.

Kathryn Heckenback was treated for cuts around the inside and outside of the mouth, which required stitches to close. She also required extensive dental work on several of her teeth which had been chipped and cracked in the accident. She testified that the scar from the wound on the inside of her lip bothered her when eating and drinking. She also testified that she was released from the hospital immediately after the emergency treatment.

Barbara Warp also received emergency treatment and remained in the hospital for nine days. She was treated by her family physician for what was diagnosed as a concussion and a traumatic myocytis of the neck. She continued to experience difficulties with her neck after several years of treatment by her family physician and she was referred by him to a specialist. Mrs. Warp continued to experience pain in her right arm, which would occasionally "go to sleep," causing her to drop things she was holding in her right hand. Her family physician testified that the conditions caused by the accident and experienced by Mrs. Warp were such that "she would have to live with them" in that they could go on for the rest of her life.

Defendant maintains that plaintiffs' counsel were improperly allowed to make repeated references to defendant's consumption of alcoholic drink prior to the mishap, without introducing any further evidence to show intoxication.

Counsel for one of the plaintiffs initially raised the matter of drinking when in his opening statement to the jury, he remarked that "there has been some talk of drinking" on defendant's part. An objection to the remark was sustained and the jury was instructed to disregard the remark.

The matter of drinking again arose on the examination of the defendant by plaintiffs' counsel when defendant was called as a witness pursuant to section 60 of the Civil Practice Act. The defendant had been attending a regional meeting in connection with his employment, and had been to a committee meeting at a Chicago hotel shortly prior to the occurrence. Counsel for one of the plaintiffs asked defendant to state the last place he had been in the hotel before he left the hotel and defendant replied, "At the bar."

In later examination by counsel for the other plaintiff, a question asked of defendant as to how many men were at the bar with him before he left the hotel was objected to, and the objection was sustained. Counsel then asked defendant how long he had been at the bar, to which defendant volunteered, "We had one drink." Several more questions concerning the bar, the people at the bar, and the type of alcohol consumed were interspersed throughout the balance of the section 60 examination of defendant by plaintiffs' counsel.

The only other evidence of intoxication, introduced by plaintiffs during their case in chief, was a question asked of Kathryn Heckenback as to whether she noticed anything about defendant's breath immediately after the accident; she replied, "He had been drinking."

At the close of plaintiffs' case, a defense motion to strike all evidence relating to the consumption of alcoholic drink was allowed and, in a lengthy instruction by the court, the jury was specifically instructed to disregard that evidence. However, in closing argument and over objection, defense counsel referred to the evidence of drinking and to the ruling and the instructions of the trial court made with regard thereto, and the jury was again told (by defense counsel) to disregard that evidence.

[1-3] Evidence of drinking of intoxicants will not, of itself, support a charge of intoxication, and plaintiffs here did not introduce any evidence of intoxication apart from the drinking. The motion to strike the evidence bearing on intoxication was properly allowed. We are of the opinion that the court's emphatic direction to the jury to ...


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