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Schmidt v. Dattilo

MARCH 8, 1971.

ALFRED H. SCHMIDT, SR., ADMR. OF THE ESTATE OF ALFRED H. SCHMIDT, JR., DECEASED, PLAINTIFF-APPELLANT,

v.

GEORGE A. DATTILO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This was a wrongful death action brought to recover damages for the death of plaintiff's deceased which resulted from a collision involving four automobiles. The jury returned a verdict for the plaintiff in the amount of $25,000, and judgment was entered on that verdict. The trial court thereafter allowed defendant's post trial motion for judgment notwithstanding the verdict. Plaintiff appeals.

The mishap occurred on Mannheim Road, several hundred feet to the north of its intersection with Irving Park Road, shortly before 8:00 A.M. on December 18, 1957. Mannheim Road at that point consists of two northbound and two southbound lanes of traffic, and bears a posted speed limit of 65 miles per hour. Traffic at the aforementioned intersection is controlled by traffic lights, and some 500 feet to the north of the intersection along Mannheim Road a "SLOW" sign is posted. It was undisputed that the weather on the morning in question was foggy or misty, and that the roadway was wet.

An automobile operated by plaintiff's deceased and an automobile operated by defendant Dattilo were proceeding in a southerly direction along Mannheim Road approaching the intersection, and two automobiles operated by Diane Gringer and Thomas Kolar had crossed through the intersection and were proceeding northbound on Mannheim Road. About 200 feet to the north of the intersection the Schmidt vehicle and the Dattilo vehicle were involved in a collision, as or immediately after the Dattilo vehicle crossed from the outer southbound lane into the inner southbound lane of traffic, causing the Schmidt vehicle to enter the northbound lanes of traffic and collide with the vehicles operated by Gringer and Kolar. As a result of the mishap, Schmidt and a passenger in his automobile, Jacques LaVoise, were killed, and Diane Gringer was seriously injured; neither Dattilo nor Kolar were injured.

Diane Gringer brought suit against Dattilo and the estate of Schmidt; the administrator of the estate of Schmidt brought a wrongful death action against Dattilo; and the administrator of the estate of LaVoise brought a wrongful death action against Dattilo. On Dattilo's motion all three actions were consolidated for trial.

After an extensive trial the jury returned verdicts in the following forms: for Gringer and against Dattilo and against Schmidt in stated amounts; for LaVoise and against Dattilo in a stated amount; and for Dattilo and against Schmidt.

Post trial motions filed by the respective parties were acted upon by the trial court in the following manner: Dattilo's motion for judgment notwithstanding the verdict (hereinafter "judgment n.o.v.") or for a new trial against Gringer and LaVoise was denied; Schmidt's motion for judgment n.o.v. against Gringer was allowed and judgment was entered for Schmidt; and Schmidt's motion against Dattilo for judgment n.o.v. was denied, but the court granted a new trial in the Schmidt-Dattilo action.

Appeals to this Court were taken from the judgment in favor of Gringer and against Dattilo, and both Dattilo and Gringer appealed from the judgment n.o.v. in favor of Schmidt and against Gringer. Dattilo also filed a Petition for Leave to Appeal to this Court from the order granting the new trial in the Schmidt-Dattilo action. (The LaVoise judgment was not appealed.)

This Court thereafter reversed the judgment in favor of Gringer and against Dattilo and remanded that cause for a new trial; reversed the judgment n.o.v. for Schmidt and against Gringer and remanded that cause to the trial court with directions to reinstate the original judgment for Gringer, because Schmidt failed to request alternate relief of a new trial; and, by separate order, denied the Petition for Leave to Appeal filed in the Schmidt-Dattilo matter. See generally, Gringer v. Dattilo, 81 Ill. App.2d 244.

On remand, after several motions, pleadings and amendments were filed, the Schmidt-Dattilo action was severed from the other matters, and the other matters were either dismissed or the judgments entered therein satisfied. The Schmidt-Dattilo action was then tried before a jury, resulting in a verdict and judgment for Schmidt in the amount of $25,000. As noted above, the trial court thereafter entered judgment n.o.v. for Dattilo, the court specifically noting that "the doctrine of collateral estoppel and res judicata are applicable to the contributory negligence of plaintiff's decedent," and this appeal followed.

Plaintiff's evidence at trial consisted of the testimony of defendant, who was called under Section 60 of the Civil Practice Act, the testimony of Diane Gringer, and the sworn depositions of plaintiff, Thomas Kolar and investigating police officers Arnold Locke and Gerald Rider.

Dattilo testified under Section 60 that he was proceeding in the outer southbound lane of traffic along Mannheim Road on the morning in question on his way to work. The weather was misty or foggy, and he was operating his automobile with the parking lights on and the windshield wipers working. The witness testified that when he reached a point about 500 feet to the north of the Mannheim-Irving Park intersection, he observed traffic backed up in his lane for about 250 feet from the intersection. He testified that he then decided to turn his vehicle into the inner southbound lane of traffic to avoid the backup.

Dattilo testified that prior to effecting the change of lanes, he looked into the left-hand rearview mirror outside his vehicle and observed traffic in the inner lane behind him. He stated that he was able to see 300 to 400 feet to the rear of his vehicle, and that when he was about 400 feet from the intersection he observed a vehicle in the inner lane behind him. He allowed that vehicle to pass and, not observing any more traffic in that lane to his rear, he changed lanes about 350 feet north of the intersection. The witness also testified that at the time he changed lanes the speed of his vehicle was 25 miles per hour, and that after proceeding in the inner lane about three seconds, or 75 to 100 feet, he felt an impact at the left rear side of his vehicle.

Dattilo testified that after the impact, the Schmidt vehicle, which struck his automobile, traveled southeasterly across the median line of the highway and struck the Gringer vehicle ...


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