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Trippel v. Lott

MAY 2, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.


This is a personal injury action in which the plaintiff alleged that she was injured as a result of the defendant's negligent operation of an automobile. After a jury trial the plaintiff was awarded judgment against the defendant in the amount of $56,000.

In this appeal the defendant raises the following issues: (1) whether the verdict is contrary to the manifest weight of the evidence; (2) whether the trial court abused its discretion in (a) suppressing a certain unsigned statement given by the plaintiff because of the defendant's failure to comply with certain discovery orders, (b) failing to sustain defendant's objection to certain comments in plaintiff's closing argument, (c) failing to declare a mistrial because of a certain unresponsive answer of a witness, (d) entering an order barring inquiry into prior medical problems of the plaintiff, and (e) failing to give one of defendant's submitted instructions.

We affirm.

The pertinent portions of the record on appeal are as follows. In October, 1968, the plaintiff filed a complaint alleging that due to an automobile accident caused by the defendant she had sustained injury to various parts of her body. In August, 1969, after the defendant had answered a Monier order of production was entered which required in part that each party was to produce, within 28 days, any statements given by a party to anyone other than their attorney or insurer. In May, 1972, over 2 years later, but still prior to trial, the defendant notified plaintiff that she had an unsigned four-page statement purportedly given by the plaintiff one day after the accident.

Immediately prior to trial the plaintiff moved to suppress this statement and all references to it during the trial, and this motion was granted by the trial judge. The plaintiff also moved, in limine, and the trial judge ordered that all direct or indirect testimonial references to any injuries suffered by the plaintiff before or after the date of accident which did not relate to the right knee and foot of the plaintiff and which were not supported by medical opinion as being a contributing cause for the present condition of the right leg, were to be excluded. The plaintiff filed an amended complaint dropping any allegation of injury other than to her right knee and foot.

At trial the defendant was called under section 60 of the Civil Practice Act and testified that she was involved in an auto accident on August 15, 1968, at approximately 7:30 P.M. She stated that she was driving her car eastbound on the 31st Street overpass over Route 294 in Cook County, Illinois. At this point on 31st Street the road is four lanes wide, two lanes in either direction separated by a concrete divider curb 8 inches high. She was driving in the outside, southern-most eastbound lane. It had been raining and the pavement on the overpass was wet. As she proceeded at approximately 30 to 35 miles per hour she suddenly hit something in the road. She did not know exactly what it was but she believed her right front wheel hit a hole in the pavement in the right hand lane in which she was travelling. She estimated the depth of the hole to be 8 inches to 1 foot. When she hit the hole her car began to skid, the front end going to the right and the back going to the left. In an attempt to straighten the vehicle she turned to the left, or north, and the car went across the inside eastbound lane, the concrete divider strip, and both westbound lanes. When the car came to a stop it had crossed the roadway and rested with the rear half blocking the outside westbound lane, and the front half off the road on the shoulder of the westbound lanes. The car was perpendicular to 31st Street facing north.

She further testified that when her car stopped she saw the plaintiff's car coming toward her in the outside westbound lane, travelling at approximately 40 miles per hour. When she saw the car it was about 800 feet away travelling directly toward her. She made no effort to move her car off of the westbound lane. A few seconds later the plaintiff's car hit her car in the right side, passenger door.

The plaintiff testified that on the date of the accident she was driving west on 31st Street at a speed of about 30 to 35 miles per hour. When she approached the overpass she was driving in the northern-most, outside lane of the four-lane roadway. The plaintiff first noticed the defendant's car when it was two or three car lengths in front of her. The defendant's car was proceeding east, in the opposite direction, and was in the southern-most, outside lane of the four lane road. She further testified that she then suddenly saw defendant's car coming at her over the divider in the center of the road. Defendant's car was travelling in a northerly direction, going across the traffic lanes and was only about 20 feet in front of plaintiff's car. The plaintiff "slammed on" her brakes but was unable to avoid hitting the defendant's car in the passenger side. The plaintiff was injured as a result of the collision and all the parties involved were taken to the hospital by ambulance.

Officer Ralph Rocco of the Cook County sheriff's police testified that he was called to the scene of the accident and made a report. He arrived at the scene after the parties had been taken to the hospital but before the vehicles had been moved. He stated that in his investigation of the accident scene he found no holes in the road surface. He further stated that he proceeded to the hospital to complete his report. While there he testified he talked to the defendant's husband, Mr. Lott. During cross and re-cross examination defendant's counsel vigorously tested the officer's recollection of his investigation in an attempt to discredit his testimony. Plaintiff's attorney then asked the officer how he could remember the fact he had a conversation with Mr. Lott, and the officer responded, "I stated to him that Mrs. Lott was getting a ticket." The defendant immediately objected and the trial court sustained the objection and directed the jury to disregard the comment. The trial court denied defendant's motion for a mistrial with further instructions to the jury to disregard the question and answer.

Other witnesses testified that on the date of the accident and the following day the road surface of the 31st Street overpass was under repair. Their testimony disclosed that during the day of August 15, 1968, a certain construction company, pursuant to a contract with the State of Illinois, removed certain temporary patching from the road surface preparatory to applying a permanent resurfacing on August 16. Upon ending their work on the afternoon of the 15th the crew did not post warning signs because they had no contractual obligation to do so and it was their policy not to use warning signs where the holes were no deeper than 2 inches.

In this regard, the only witness who testified that there were large holes on the road surface was the defendant herself. Witness Linger, a neighbor of the plaintiff, who observed the bridge on the morning of the accident, and witness Matechick, a State of Illinois road inspector, who inspected the surface of the bridge on May 8, 1968, both testified that no hole on the bridge was deeper than 2 inches. Mr. Lott, defendant's husband, testified that he took pictures of the bridge surface on the morning of August 16 and he stated the holes were from 1 to 6 inches deep. He did not see any that were 8 inches to 1 foot deep.

During closing arguments plaintiff's counsel posed a rhetorical question to the jury. After defendant argued that plaintiff had been guilty of contributory negligence in causing the accident, plaintiff's counsel stated, "If they honestly and sincerely believe that, why don't they counterclaim and sue her [plaintiff]?" The court overruled defendant's objection and denied her motion for a mistrial, making the comment, "Proper argument."

Upon these facts the jury returned a verdict for plaintiff in the amount aforementioned. In this appeal the defendant asks for a reversal of the judgment of the trial court for a number of reasons among ...

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