APPEAL from the Circuit Court of Cook County; the Hon. MINOR
K. WILSON, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Plaintiff, the driver of an automobile, sued defendant for personal injuries resulting when his vehicle went out of control and struck an iron fence post at the side of the roadway. He alleged that the proximate cause of the accident was a chuckhole located in one of defendant's streets. The jury found in favor of defendant and against plaintiff, and judgment was entered on the verdict.
Plaintiff does not contest the sufficiency of the evidence to support the verdict. On appeal he contends that: (1) the court erred in refusing to allow certain rebuttal testimony to be introduced; (2) defense counsel committed reversible error by his closing argument; (3) error was committed when defense counsel offered to stipulate to the introduction of a police report; and (4) the court erred in denying plaintiff's motion for a mistrial following a volunteered hearsay statement.
Since the sufficiency of the evidence is not in issue, we shall only highlight the relevant facts. This accident occurred on the Damen Avenue bridge, which is four lanes wide, two lanes going northbound and two going southbound. Plaintiff was driving north, in the outside lane, in his 1967 Camero automobile. He testified and introduced evidence to show that as his car passed over the chuckhole, his head hit the roof of the auto, and he was knocked semi-conscious. He then lost control of the vehicle, and, after traveling 1400 feet, the car struck an iron fence post. Defendant introduced evidence, including expert testimony on a 1967 Camero's suspension system, which contradicted plaintiff's theory of the accident and which, if believed, would demonstrate that even if plaintiff's auto had struck the chuckhole, a fact contested by defendant, the chuckhole would not have caused plaintiff to strike his head against the roof.
Plaintiff first contends that the court erred in refusing him the opportunity to offer testimony to rebut the expert testimony of defendant's witness, Dr. Easton. Easton testified to the characteristics of a 1967 Camero automobile and specifically described its suspension system. In answer to hypothetical questions, he stated that striking the chuckhole under the circumstances presented would not deflect or change the course of the automobile, nor would it cause the driver to strike his head against the roof of the car. On cross-examination plaintiff brought out for the first time that Dr. Easton had conducted some road tests, although the results of these tests were never introduced into evidence. In rebuttal plaintiff called Dr. Nagler, who contradicted and further explained Dr. Easton's testimony concerning the suspension system and the results that would occur if the car struck the chuckhole. Then plaintiff called Edmund Rahal to testify in rebuttal. By way of qualifications it was shown that Rahal was in the profession of reconstructing automobile accidents and running road tests. Plaintiff attempted to introduce the results of Rahal's tests and have him answer hypothetical questions but was not allowed to do so.
• 1, 2 A party holding the affirmative can introduce in rebuttal only such evidence as tends to answer, explain, repel, contradict, or dispose of new affirmative matter introduced by the defendant. (Pope v. St. John's Hospital, 128 Ill. App.2d 325, 262 N.E.2d 369; Ordway v. Buckingham, 152 Ill. App. 45.) The allowance of rebuttal evidence is a matter within the sound discretion of the trial judge. (Johnson v. Chicago & North Western Ry. Co., 9 Ill. App.2d 340, 132 N.E.2d 678.) Furthermore, as stated in Pepe v. Caputo, 408 Ill. 321, 328, 97 N.E.2d 260:
"It is well settled that where testimony might properly have been introduced, as part of the proof in chief, it is discretionary with the trial court whether such testimony shall be admitted in rebuttal. (City of Sandwich v. Dolan, 141 Ill. 430.) The evidence offered here did not rebut any specific testimony of the defendant's witnesses. It was definitely cumulative evidence by those who testified in chief."
• 3 Rahl's testimony concerning road tests could not have rebutted any evidence brought out by defendant for defendant never introduced any evidence of road tests. Only when plaintiff cross-examined Dr. Easton were road tests mentioned, and even then no results of these tests were ever introduced into evidence. If plaintiff was attempting to contradict Dr. Easton's testimony through Rahal, at most it would only be cumulative to Dr. Nagler's rebuttal testimony. Plaintiff also argued that such tests would be probative on the issue of liability. This testimony would then more properly belong in plaintiff's case-in-chief, and the court did not abuse its discretion in refusing to allow it in rebuttal.
As to the court's refusal to allow Rahal to answer hypothetical questions relating to whether the chuckhole caused plaintiff's head to strike the car's roof, the only basis for Rahal's testimony stemmed from the road tests he conducted. Therefore, if he was allowed to answer these hypothetical questions, plaintiff would be achieving indirectly what he couldn't do directly. Furthermore, after reviewing the hypothetical questions actually posed, we find that they were improper in that the questions were phrased in a manner in which only one answer was possible, and further, they assumed facts not supported by the evidence.
Plaintiff argues that the court erred in refusing to allow him to offer evidence, in rebuttal, of a prior inconsistent statement made by defendant's witness, Officer Versteegh. On cross-examination of Versteegh the following colloquy occurred:
"[By plaintiff's counsel] Q: Yes, somebody asked you to come over to our office or talk with us about this collision, is that correct?
A: I received, I think, several phone calls.
Q: Yes, and you told Mr. Feta that you couldn't talk with us unless you got permission from the ...