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Ryan v. Mcevoy

JUNE 26, 1974.




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


This is an action by the plaintiff, Ruth Ryan, to recover for injuries to her person sustained as a result of the alleged negligent operation of an automobile by Leonard McEvoy, the defendant. The trial court severed the issue of damages from the issue of liability and a verdict was rendered in favor of the defendant on the liability issue. Plaintiff appeals from the judgment entered thereon.

Plaintiff argues before this court that the overwhelming weight of the evidence established defendant's liability and that there were so many prejudicial errors committed in the course of the trial that she could not possibly have received a fair trial.

The plaintiff, Ruth Ryan, testified that at about 2 A.M. on April 9, 1967, she was seated behind one John McGrath on a motorbike which Mr. McGrath was operating. They were proceeding north on Komensky Avenue in Chicago and approaching the intersection of 62d Street. Defendant McEvoy was operating an Oldsmobile which was eastbound on 62 Street with a passenger named George Twist. There were no stop signs or stop lights at the intersection of 62d Street and Komensky Avenue. The streets were wet due to drizzling or rainy weather conditions. Plaintiff testified she saw defendant's vehicle coming from the left and that it was approximately 30 or 40 feet away when she first saw it. The car made contact with the motorbike, striking her on the left side. The motorbike had one large seat with two bars on the rear and a place for the feet of the driver and the passenger. Plaintiff had one hand around a metal bar on the seat and one hand around McGrath's waist just prior to the impact. McGrath, whom she had known prior to the night in question, was taking her home from a restaurant. Earlier that night she and McGrath had been visiting at her brother's house for 2 or 3 hours.

John McGrath testified for the plaintiff that prior to the collision he was driving the motorbike about 15 miles per hour. He first saw the car's lights when it was at a distance of approximately 30 feet. He estimated the speed of the car at about 40 miles per hour. The defendant's left front fender hit the rear of the motorbike. The impact took place in the center of the intersection.

The defendant, Leonard McEvoy, testified that he saw the lights of the motorbike and applied his brakes. His car was stopped for several seconds when the motorbike hit it, damaging it slightly between the right front fender well and headlight. When he first observed the motorcycle it was about 40 feet from the intersection and he was about 20 to 25 feet away from the intersection. He was travelling at a speed of about 10 or 15 miles per hour because of the weather conditions. He said he had reached the center line of the intersection when his car came to a stop before the collision.

• 1 As we view the evidence it is our opinion that this was a very close case. The plaintiff's driver was proceeding to the right of the defendant when the motorbike entered the uncontrolled intersection. The plaintiff's version is that the defendant's car struck the left side of the motorbike and her left leg. The defendant's version is that his car was at a standstill when the motorbike ran into it. Where the question of liability is sufficiently close that the jury might reasonably have returned a verdict for either party, the trial must be conducted in an orderly manner and be free from any error that is likely to influence the jury. (See Mattice v. Klawans, 312 Ill. 299, 143 N.E. 866.) We will thus consider first whether any such error was committed.

During the trial, Officer George Betts, who was a member of the Traffic Division of the Chicago Police Department, testified as a witness for the plaintiff that he investigated the accident. He arrived at the scene and then went to the Holy Cross Hospital. At the hospital he said he talked to the two drivers of the vehicles involved, and, after refreshing his recollection as to their identity, the following occurred:

"Q. Who was present when you had the conversation with Mr. McEvoy?

A. I could not honestly say whether I talked to the two drivers in front of them. I do remember that I talked to both of them in the hospital.

Q. Would you tell us what conversation you had with Mr. McEvoy concerning this accident?

MR. MOE [Defendant's attorney]: To which I object.

THE COURT: Sustained, unless he remembers who was present.

MR. DONNELLY [Plaintiff's attorney]: Well, if he can't remember, he can use it as an admission from the Defendant.

THE COURT: He can't use it. The objection is sustained."

The plaintiff urges that the policeman's testimony was admissible as proof of an admission by the defendant and that its exclusion was error. We agree. It is fundamental that admissions or statements material to the issue by a party to a suit are always competent and admissible when offered by the opposite party. (Stump v. Dudley, 285 Ill. 46, 120 N.E. 481.) Defendant claims, however, that the trial court properly rejected the officer's testimony regarding the conversation because no proper foundation was laid. We are aware of a rule which requires that, in order to obviate the objection of unfair surprise, when evidence of a contradictory statement by an ordinary witness is to be proffered as a prior self-contradiction, the witness must be warned when on the stand, and asked with certain specificity as to time, place, and person, whether he made the statement to be proffered. (IIIA Wigmore, Evidence, § 1025 at 1020, and ff. (Chadbourn rev. 1970); see People v. Henry, 47 Ill.2d 312, 265 N.E.2d 876.) But this type of foundation requirement is generally not applicable to a proffer of the admissions of a party. (IV Wigmore, Evidence, § 1051 at p. 12ff. (Chadbourn rev. 1972); see Buck v. Maddock, 167 Ill. 219, 47 N.E. 208.) And we are unable to conceive of any other reasonable theory that would ...

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