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Fortner v. Mcdermott

AUGUST 19, 1971.

HARRY FORTNER, PLAINTIFF-APPELLEE,

v.

THOMAS MCDERMOTT, JR., DEFENDANT, — (RALPH WOLINSKI, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM J. BAUER, Judge, presiding.

MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:

The plaintiff brought this action to recover for personal injuries sustained by him as the result of a three-car intersection collision. Plaintiff was eastbound on North Avenue, a four-lane through street with two lanes eastbound and two lanes westbound, and the defendant, Wolinski, was westbound on North Avenue in the city of Lombard. Defendant McDermott, age seventeen, was northbound on Grace Street which has a stop sign for Grace Street traffic at its intersection with North Avenue. McDermott proceeded to cross North Avenue in front of both plaintiff and Wolinski. There was a slight impact between the right rear of McDermott's car and the right front of Wolinski's car, after which Wolinski's car crossed the center lane of North Avenue and struck the plaintiff's car. A jury in the circuit court of Du Page County returned a verdict in the amount of $230,000 against both defendants, and judgment was entered thereon. After denial of Wolinski's post-trial motions, Wolinski alone appeals to this court.

Because the contentions of the appealing defendant involve the manifest weight of the evidence, it is necessary to set forth testimony presented in some detail.

About six o'clock on the morning of August 8, 1967, the plaintiff was driving his car eastbound on North Avenue in Lombard, and was proceeding in the inner eastbound lane. However, he has no recollection of anything which occurred within a block of the intersection of North Avenue and Grace Street. McDermott, when called as an adverse witness by the plaintiff, testified that at the time of the accident he was northbound on Grace Street and on his way from his home to work. As he approached the intersection of Grace Street and North Avenue, he stopped at the stop sign, which was 15 feet south of North Avenue, looked once to his left and right, and then looking straight ahead proceeded into the intersection. He stated that when he looked, the traffic to his left or the eastbound traffic was about a block and a half away but he did not know how far the traffic to his right, the westbound traffic, was from him, although he did see a car approaching. He traveled through the intersection until he felt a bump. At that time his entire car, except for the last couple of feet, had proceeded through the intersection and was north of North Avenue. When he felt this bump, he heard no horn and no noise of brakes, but later heard a big crash. His speed was about 15 miles per hour when the bump occurred, but he did not know he was in an accident until he was stopped later several blocks north of North Avenue and informed that he was in an accident. After returning to the scene of the accident, plaintiff's car was in the eastbound center lane facing east, and the Wolinski car was very close to the plaintiff's car and was facing southwest while being one-half in the eastbound center lane and one-half in the westbound center lane. It was uncontradicted that the only damage to McDermott's car was a broken rear backup light on the right-hand side. Counsel for Wolinski asked no questions of McDermott.

Wolinski, also called as an adverse witness by the plaintiff, testified that the weather and visibility were good; that he was proceeding westbound on North Avenue in the traffic lane nearest the shoulder, which shoulder was wide enough to accommodate a car; and that one block from Grace Street he was going 50 miles an hour. He did not change his speed until the time of the collision. However, he saw the McDermott car two or three car lengths before the Grace Street intersection with North Avenue when it was 5 to 10 feet south of the stop sign, going 40 miles an hour. After he saw the McDermott car, he looked straight ahead. When he next saw the McDermott car, it was "shooting" across North Avenue and seemed to hesitate or slow down at the center lane and then speeded up to 40 miles an hour or better at the point of impact with his car.

Although Wolinski had testified as stated above, later in his testimony he stated that he tried to swerve around the back of McDermott's car when he saw that car shoot out; that he gradually applied his brakes when he was a couple of car lengths from the McDermott car, slowed down to about 40 miles an hour, and was actually in the inside lane at the time of the impact between his right front fender and the right rear of McDermott's car. He also stated that at the time of the accident the front end of McDermott's car was at the north edge of North Avenue, and the rear end was coming past the middle of the two westbound lanes of North Avenue. On cross-examination, when confronted with his sworn deposition taken on a date close to the date of the accident, Wolinski admitted having previously stated that he did not apply his brakes until approximately three or four feet from the point of the impact with the McDermott car, and that his car was entirely in the outside lane at the time of that impact. The deposition also revealed that, when he first saw the McDermott car in the intersection, it was blocking the inside eastbound lane; that Wolinski was traveling 55 miles an hour when he first saw the McDermott car 40 feet away from the intersection; that he saw the McDermott car travel 30 feet before the impact; and that when he applied his brakes he was in the middle of the intersection. Wolinski also testified that after he collided with the McDermott car, he did not remember what happened. On deposition, however, after having stated that he was in the outside lane at the time of the accident, he said he thought he was in the lane he had been traveling in but did not know and he "couldn't get control" of his car. Counsel for Wolinski asked no questions of him, although there was a marked difference between his testimony and his deposition. The jury was presented with the question of the impeachment of Wolinski by his deposition.

Defendant Wolinski called Robert Hall as a witness. He testified that he was traveling eastbound on North Avenue in the outside lane and alongside of plaintiff's car, which was in the eastbound inner lane; that he saw McDermott's car about 50 feet from the intersection, and that although McDermott slowed a little bit as he approached the intersection, he did not stop but continued through the intersection. He further testified that McDermott's car was going 10 miles an hour when it passed the stop sign, speeded up to 15 miles an hour as it entered North Avenue, and when it got to the eastbound lane on the north side, a westbound car collided with it. McDermott's car was 50 feet from the intersection when the Wolinski car was 200 feet from the intersection. When McDermott's car passed in front of Hall, he was 100 to 150 feet away, but the Wolinski car was a little closer to the McDermott car. The collision between Wolinski and McDermott occurred at about the dividing line of the two westbound lanes on North Avenue. The Wolinski car bounced off the McDermott car, and proceeded west across the center line into plaintiff's car at a point of impact which was 50 to 75 feet from the prior collision. On cross-examination, Hall testified that the first collision was rather slight and that at the time of that impact the Wolinski car remained in the lane next to the north edge of North Avenue. After the collision between plaintiff and Wolinski, the plaintiff's car was 25 feet west of the intersection, straddling the two eastbound lanes, and the Wolinski car was across the center line, half in the westbound lane and half in the eastbound lane, facing in a southwest direction. He further stated that the Wolinski car was 200 feet east of the intersection when the McDermott car started to enter North Avenue and that he, Hall, observing the developing situation, took evasive action, and pulled off of North Avenue on his right-hand shoulder. He also testified that the Wolinski car slowed down 25 to 50 feet prior to the impact and reduced speed about 10 miles an hour from the 55 miles an hour it had been traveling. When confronted with his deposition taken nine days after the accident, Hall acknowledged that in his deposition he stated he could not estimate the speed of the Wolinski car prior to the accident other than to state it was moving at a fairly rapid speed; that he could not tell whether Wolinski took evasive action; and did not know if Wolinski changed the speed of his car prior to the accident. He had also stated on deposition that the impact between McDermott and Wolinski occurred five to six feet from the north edge of North Avenue.

A deputy sheriff, James Baker, who investigated the accident, was called as a witness by Wolinski. When Baker arrived at the scene of the accident, the plaintiff's car and Wolinski's car were in the inner eastbound lane. He said he found a small amount of debris in the inner westbound lane and 75 to 100 feet away he found debris where the Wolinski and plaintiff's cars were located after impact. Baker stated that he had determined the points of impact from the debris and, therefore, had determined that the first impact occurred in the inner westbound lane because of the debris in that lane. Cross-examination revealed that his report of the accident indicated the first impact occurred in the outer westbound lane and there was nothing in the report about location of debris in the westbound inside lane. Prior to testifying, Baker stated he had a conference with the attorney for Wolinski with reference to the point of the impact of the first accident.

Defendant Wolinski contends that the verdict is contrary to the manifest weight of the evidence and states that since he was on a preferential highway, for which McDermott was required to stop, he had the right to assume that McDermott would stop and that, therefore, there was no duty imposed upon him until McDermott entered the intersection. He states that once McDermott had entered the intersection, he slowed down and swerved and, therefore, did everything that could possibly be done to avoid the collision with McDermott. However, we are confronted with a situation of whether Wolinski and his witness, Hall, were effectively impeached in the minds of the jurors by statements made on their depositions which contradicted their testimony during trial. The jury, under the circumstances here present, could very well have considered that portions of both Wolinski's and Hall's testimony were not credible in light of their previous statements in their depositions.

[1-3] There is no question but what the collision between McDermott and Wolinski was slight and that the damage to the McDermott car was very little. In light of Wolinski's testimony that McDermott was going 40 miles an hour when he was 5 to 10 feet south of the stop sign, it would seem unlikely that Wolinski could expect McDermott to stop at the stop sign, although he states he has a right to assume that McDermott would stop. Also, it was certainly a question for the jury as to what Wolinski did upon seeing the McDermott car shooting across the intersection, where or when he applied his brakes, and whether he reduced his speed and changed lanes prior to the accident with McDermott. Wolinski did testify that he could not get control of his car at the time of the accident with McDermott. In Sughero v. Jewel Tea Co., 37 Ill.2d 240, the plaintiff sought damages for personal injuries when his car collided with defendant's tractor unit operated by a Mr. Perrino. Perrino was proceeding in an opposite direction from the plaintiff when he skidded into plaintiff's lane of traffic. The court directed a verdict for the plaintiff on the issue of liability. In that case, the Supreme Court said in affirming the Appellate Court:

"A reading of the appellate court opinion shows that it did not hold skidding in and of itself constituted negligence. The rationale applied by the court was that after plaintiff had shown defendants' vehicle was on the wrong side of the highway and out of control, Perrino had the duty of showing it was there for some reason other than his own negligence."

Courts of review usually will not disturb a verdict of the jury as the jury is in a better position to determine the credibility of the witnesses and the proper weight to be given their testimony. (Allen v. Yancy, 57 Ill. App.2d 50, 55.) We cannot say that a conclusion opposite to that reached by the jury is required by the evidence or that the jury verdict is palpably erroneous and wholly unwarranted by the manifest weight of the evidence.

Defendant Wolinski also contends that he was prejudiced by improper argument of plaintiff's counsel and that those arguments constituted reversible error. Plaintiff's counsel, in his closing argument, stated:

"You may have noticed that when Dr. Markin and some of the other doctors were testifying — and right now when I have to discuss this problem I don't have Harry Fortner in the courtroom, because I don't want Harry to hear some of this.

"But I don't want you to think that he doesn't have an interest in what is going on here. I told him to wait out there."

Defendant Wolinski states that this is the same argument made in Lange v. Coca-Cola Bottling Co. of Chicago, 105 Ill. App.2d 99, and which was there held to constitute reversible error. In Lange, a Dr. Atlas, while testifying for the plaintiff as to the injury sustained by plaintiff, stated that he was reluctant to give an opinion as to the prognosis with the plaintiff's wife in the courtroom. Thereupon, the plaintiff's attorney asked the wife of the plaintiff to step out of the courtroom and she left the courtroom. The doctor then testified that the prognosis was extremely bad and that he estimated that the plaintiff's life expectancy was short and would be less than two or three years. Defendant's counsel made a motion to strike the answer as being based upon conjecture, and the answer was stricken. The court said in regard to the argument of plaintiff's counsel:

"He began his argument by saying:

`But in any event you may wonder where are the Langes at in a crucial stage in this case, and the answer to that is this — I don't have eyes watering in my nerves. Dr. Atlas preferred to have Mr. & Mrs. Lange out of the courtroom. So do I prefer to have these people not to be here this morning. So I took the liberty of calling the Langes last night and told them something unexpected came up that the court ...


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