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Biel v. Wolff

JUNE 10, 1970.

THOMAS BIEL, PLAINTIFF-RESPONDENT-APPELLEE, CROSS-APPELLANT,

v.

CHARLES W. WOLFF, DEFENDANT-PETITIONER-APPELLANT, CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. B. FAIN TUCKER, Judge, presiding. Reversed and remanded with directions.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Plaintiff, Thomas Biel, brought an action for damages for personal injuries resulting from the alleged negligent operation of a motor vehicle by defendant, Charles W. Wolff, who struck plaintiff, a pedestrian. The jury returned a verdict for defendant. Plaintiff filed motions for judgment notwithstanding the verdict on liability or in the alternative for a new trial. The court granted a new trial on the grounds that prejudicial errors were committed and the verdict was contrary to the weight of the evidence. Defendant filed a petition for leave to appeal which was allowed. Plaintiff also appeals and contends that the court should have granted plaintiff's motion for a judgment notwithstanding the verdict on the issue of liability.

The accident occurred on Sunday, February 3, 1963, at approximately 1:00 a.m., on Joe Orr Road west of Dixie Highway in Cook County, Illinois. It was a clear, cold winter night and the temperature was 7 degrees above zero. There was a recent accumulation of snowfall of about 6 inches. However, the road was cleared of snow but snowbanks were created on each side of the road by snowplows. Joe Orr Road is a 2-lane east-west black-topped road and is 20 feet wide. Along the north side of Joe Orr Road, west of Dixie Highway is the Ranch House Restaurant, which is set back from the road with a parking lot and two gravel driveways leading into Joe Orr Road. Along the south side of Joe Orr Road, De Angelis Court runs south from Joe Orr Road, approximately 1/2 block west of Dixie Highway and 1/2 block further west Willow Street runs south from Joe Orr Road, both these streets form a "T" intersection with Joe Orr Road. There are no sidewalks off either side of Joe Orr Road. Defendant's vehicle struck plaintiff some 200 feet west of the intersection of Dixie Highway and about 20 to 25 feet east of the western driveway of the Ranch House parking lot and north of the west sidewalk of De Angelis Court.

Plaintiff was a 20-year-old college student, and on the evening of February 2, 1963, he was in the company of two friends, Phillip Piazza and Craig Benjamin as they walked east on the north side of Joe Orr Road on their way to visit a nearby bowling alley. Piazza crossed on the south side of the road in an attempt to seek a ride from some eastbound motorist. Plaintiff testified he continued to walk on the shoulder of the north side of Joe Orr Road and he was about 15 to 20 feet directly behind Benjamin. The last thing plaintiff remembered was that he approached the Ranch House Restaurant driveway, at which point he was struck by defendant's vehicle.

Plaintiff testified that he was walking on the dirt and gravel shoulder of the road at the moment of impact. Plaintiff and defendant testified that there were 2 or 3 feet between the edge of the road and the snowbank which had been created by snowplows.

Defendant testified that he was operating his vehicle at about 20 or 30 m.p.h. and proceeding in a westerly direction on Joe Orr Road and his wife was seated next to him. As they crossed Dixie Highway he observed an eastbound car and concentrated on meeting and passing it safely. As the two vehicles approached each other, plaintiff was perceived about 20 to 25 feet ahead of defendant's vehicle running from south to north in the westbound lane. He applied his brakes, but the right front of the vehicle struck plaintiff.

Defendant's wife testified that it was a clear, black night and everything was dark along Joe Orr Road west of Dixie Highway. There was an approaching eastbound vehicle in its proper lane and she observed a figure in front of this eastbound vehicle and was about to call to her husband when she observed a figure in front of their car moving from south to north, and another on the shoulder of the road. The three figures appeared simultaneously. She closed her eyes and screamed. The brakes of their car were being applied before or just about the same instant she screamed.

Piazza was called by plaintiff and testified there was artificial lighting in the area of the occurrence. He had crossed over to the south shoulder and was some 5 to 10 feet east of plaintiff and Benjamin when he saw defendant's vehicle with its headlights lighted and at about the same time, saw the eastbound vehicle. Defendant's vehicle passed and he observed that it was in its proper lane. Then he heard plaintiff struck and saw him hit the pavement, and noticed defendant's vehicle still in motion in its proper westbound lane.

Frank Opsahl testified for the defense that he was a passenger in a vehicle proceeding west on Joe Orr Road at approximately 1:00 a.m. and observed 2 or 3 figures running or trotting in a westerly direction on the north side of the road somewhere in front of the Ranch House Restaurant. He further testified that the snowbank on the north side of the road came up to the road. That his vehicle continued one block west to Willow Street and turned around to re-enter Joe Orr Road when he became aware that an accident had taken place in front of the Ranch House Restaurant.

It is undisputed that the headlights of defendant's vehicle were functioning properly. Defendant testified he could see between 340 and 680 feet straight ahead, and about 60 to 80 feet to his right and left. A lighting engineer testified that a streetlight fixture at the corner of De Angelis and Joe Orr was installed 25 feet above the ground and it would cast sufficient light to permit a person's silhouette to be seen from a distance in excess of 1,000 feet and would have a primary concentration of light covered in a circle of 62 1/2 feet in diameter. This light was functioning at the time of the accident.

In addition to the foregoing streetlight, it was established that the two floodlights on the Ranch House Restaurant were lighted and projected light onto the parking lot and driveways leading to Joe Orr Road.

Plaintiff also presented a nearby resident and the ambulance driver who removed plaintiff to the hospital, who also testified that the lighting conditions at the scene were good. Defendant presented the testimony of a service station operator whose place of business is at the intersection of Joe Orr Road and Dixie Highway, and that of a nearby resident, who testified that the scene was dark and the lamppost made a circle of light which did not light up the north side of Joe Orr Road "too good." The police officer, Konley, who investigated the accident, also testified in cross-examination that the lighting conditions were poor; that there were streetlights, but it was very poorly lit up.

Plaintiff sustained a laceration over the left eye and forehead and a cut on the back of the tongue. These injuries were sutured. There was also a laceration of the left leg below the knee and multiple contusions and abrasions of both legs. Plaintiff developed "foot drop" and the diagnosis was a tear of the lateral-collateral ligament of the right knee and peroneal nerve. Surgery was performed on the knee and at the time of trial, plaintiff was suffering from an instability of this knee.

A radiology specialist examined plaintiff's X rays, recited the pathology they disclosed and also expressed an opinion as to the manner in which plaintiff sustained his injuries. This witness testified that the sequence of events would indicate that the trauma that arose to those two extremities occurred from the left side and slightly to the front. That the left leg was hit from the left side and started to collapse, and then was driven against the inside of the right leg, which then collapsed.

OPINION

Defendant contends that there was a fair trial and that the verdict was not against the manifest weight of the evidence. *fn1 Plaintiff contends that the trial court did not abuse its discretion in granting a new trial because of intervening prejudicial errors and that the verdict for defendant was against the manifest weight of the evidence*fn1 and also contends that the court erred in not granting plaintiff's motion for a judgment notwithstanding the verdict on the issue of liability.

The following are presented as matters that deprived plaintiff of a fair trial:

1. Witnesses presented who were not listed in Answer to Interrogatories,

2. Defendant's wife weeping in the presence of the jury,

3. Prejudicial instruction,

4. Misleading argument,

5. Improper introduction of a police report,

6. Improper impeachment,

7. Improperly arguing the failure of Craig ...


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