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French v. City of Springfield

MAY 16, 1972.

DONNA FRENCH, PLAINTIFF-APPELLANT,

v.

CITY OF SPRINGFIELD, ILLINOIS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. JOHN B. WRIGHT, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Plaintiff-Appellant Donna French was a guest passenger in an automobile driven by Phillip McCarty. The car collided with a utility pole in the 2400 block of South Fifth Street in Springfield, Illinois, at about 2:00 A.M., on January 16, 1969. McCarty was killed in the accident and plaintiff suffered severe injuries, some of which are permanent.

Plaintiff sued the City of Springfield; the case was submitted to a jury which returned a verdict in favor of the City, and plaintiff appeals from the judgment entered on the verdict.

In view of the disposition made of the issues raised in this appeal, there is no point in describing at length the scene of the occurrence. Suffice it to say that Fifth Street runs north and south, and is a one-way street for traffic proceeding in a southerly direction. It is 52 feet in width, there being three traffic lanes, plus additional lanes for parking on both the east and west sides of the street. The utility pole, struck by the car in which plaintiff was riding, was on the west side of Fifth Street and south of the overpass which carries the tracks of the Norfolk and Western Railway over Fifth Street. As traffic approaches the overpass from the north, Fifth Street begins its inclination from level (in order to go under the Norfolk and Western tracks) at a point approximately 400 feet north of the point where it descends to its lowest level beneath the overpass, then gradually ascends to its original level at a place approximately 380 feet south of its point of lowest descent beneath the overpass. The minimum verticle clearance between the surface of Fifth Street and the overpass is 14' 3 3/8".

Some five days prior to the date of the accident employees of the City Water, Light and Power Department, in the process of repairing a leak in a water main, had broken the pavement and made excavations in the east parking lane and in a portion of the east driving lane on Fifth Street. These excavations were approximately 510 feet south of the point of lowest verticle clearance between Fifth Street and the overpass. On completion of the work certain barricades and flare pots were placed in front of the excavations. The utility pole with which the car collided was on the west side of Fifth Street approximately 150 feet southwest of the barricaded area.

Plaintiff's complaint charged the City with negligence in failing to post signs north of the barricades to warn approaching motorists, of placing barricades which obstructed and were hidden from the view of motorists, of failure to place barricades which could be seen at night and of not adequately illuminating the barricades. By later amendment, she additionally charged that no application was filed with the City Clerk, as provided by City ordinance, and failure to have the street obstruction approved by the Superintendent of Streets through issuance of a permit as required by the ordinance. Excepting the aforesaid amendment, the thrust of the Complaint is negligent failure to adequately warn motorists of the obstruction in the street.

At the start of the trial plaintiff submitted a Motion in Limine which requested the Court to rule that the results of a blood alcohol test performed on the deceased driver, Phillip McCarty, were not admissible in evidence. Plaintiff reasoned that since McCarty's intoxication was not an issue, that evidence of his intoxication was not imputable to plaintiff, and the alcoholic blood content of McCarty, a fact not known to plaintiff prior to the accident, was not probative as to her standard of conduct. This motion was denied by the trial judge.

During the course of the trial the defendant called several witnesses on the issue of the intoxication of McCarty. Roger Hinricks testified that he saw plaintiff and McCarty at the Harness House at about 12:30 A.M., on morning of the accident. Hinricks indicated that when he sat with them they were consuming a gold beverage which was similar in appearance to the whiskey and water that he was drinking. Hinricks also stated that plaintiff and McCarty each had two of these drinks and were still at the Harness House when he left at 1:30 A.M. On cross-examination Hinricks testified that McCarty's speech was clear, there was nothing unusual in the way he walked, and his eyes were the same as they were at any other time. Finally, Hinricks declared there was nothing unusual about the plaintiff.

Another witness, Glen Wolfe, called by defendant, testified that he saw and talked to plaintiff and McCarty for 15 minutes at the bar in the Robinhood Restaurant between 11:00 and 11:30 P.M., on the evening of January 25th, that each had a glass with ice cubes and liquid in it before them, and that he talked to them and was within two feet of them. However, Wolfe admitted he did not know what the glasses contained. This was the extent of defendant's evidence on the question of the intoxication of Phillip McCarty, when plaintiff renewed her motion to exclude the blood alcohol test evidence. Whereupon defendant's counsel responded, "Well, I'm making the motion now, to offer the evidence for the limited purpose of bearing on the question of proximate cause." The Court responded, "All right. Motion allowed."

The jury was brought in and in its presence, defendant's counsel stated, "May it please the Court. At this time I wish to offer the testimony of Mr. William Alexander for the purpose, for the limited purpose of bearing on the question of proximate cause of the accident." The Court responded, "All right." Plaintiff's counsel then asked that the record show his continuing objection to the testimony. The Court stated, "All right. It will be received subject to the continuing objection and with the admonition that it is for the limited purpose of bearing on the question of proximate cause. Proceed."

Defendant then called Herbert Alexander, a medical technologist and assistant laboratory supervisor at St. John's Hospital in Springfield. Alexander had performed a blood test on a specimen taken from the body of McCarty. The test was performed on January 27, 1969, at the request of Doctor Nickey. The test was an enzyme reaction test and was for the purpose of determining the quantity of alcohol in the blood. The results of the test showed that the blood contained .136 percentage of alcohol.

Defendant then called Doctor Nickey, saying "May it please the Court, at this time I wish to offer the testimony of Doctor William N. Nickey for the limited purpose of bearing upon the question of proximate cause of this accident, and I ask that the jury be so admonished." Plaintiff again objected and the Court's ruling was "All right. We'll proceed with the understanding that there is a continuing objection to the questions asked this witness, and the jury are instructed that it's being offered for the limited purpose of bearing on the issue of proximate cause."

Defendant thereupon called Doctor William N. Nickey, Jr., a pathologist at St. John's Hospital. The doctor testified that January 26, 1969, between 8:00 and 9:30 A.M., he drew a blood sample from the body of Phillip McCarty who was deceased when the same was drawn. When death occurred is not disclosed in the record. Doctor Nickey delivered the sample to Herbert Alexander, and he testified that Alexander's report showed that the quantitation of blood alcohol was .136 grams percent.

Doctor Nickey then testified that in connection with his studies in pathology, clinical pathology and forensic pathology he had never made any studies of the effect of alcohol on the human body, had never made any type of studies in connection with the effect of alcohol on the human body. The doctor stated that alcohol has different reactions on different persons, that the "type of person" who has consumed the alcohol "sometimes" has something to do with its effect on him, and that alcohol has an effect on the actions of a person. He was then asked "Have you made any observations concerning the effect upon persons who have consumed a quantity of alcohol and who later, upon blood tests having been made, have shown a quantity of alcohol in their bloodstream?" Doctor Nickey responded that he had made a number of studies in which he had done autopsies on deceased persons who had been involved in various automobile or homicidal accidents or accidental incidents leading to their death, "while they are under the influence of alcohol and had appreciable alcohol in their blood." He had not made controlled studies during life of people drinking alcohol on an experimental model. He further testified that as a result of his studies he had been able to form an ...


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