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Doria v. Costello

SEPTEMBER 3, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.


Plaintiff brought an action for personal injuries suffered when he was struck by an auto driven by defendant Patrick Costello, a policeman on duty in the defendant Village of Markham. The jury returned a verdict in favor of the defendants.

Plaintiff now prosecutes this appeal presenting the following issues for review: (1) whether the trial court erred in denying plaintiff's motion to strike certain testimony; (2) whether the trial court erred in submitting to the jury instructions pertaining to intoxication; and (3) whether the trial court erred in the giving and refusing of other instructions.

During the evening of December 23, 1967, defendant Costello (then employed as a police officer with the Village of Markham) received a radio communication directing him to pick up an automobile in a shopping center and drive it to the owner's home. The shopping center is located on the east side of Kedzie Avenue and extends from 159th Street on the north to 161st Street on the south. Costello picked up the car (a dark-colored Ford), exited the parking lot at a point approximately 1/4-block south of 160th Street and proceeded northward on Kedzie. Realizing that he should be proceeding southwest of the shopping center, Costello made a left turn into 160th Street so as to go in a westerly direction. As he made this turn, the defendant noticed that the pavement was rough, then continued around the block. When he passed the intersection once again, he found plaintiff sitting on the road's shoulder approximately 5 feet south of 160th Street and 4 feet west of Kedzie in the shoulder and culvert. In response to Costello's inquiry, plaintiff stated that he was sitting there because he had been struck by a late model green or dark-colored Ford. After delivering the car, Costello, accompanied by his partner, Officer Casper, returned to 160th and Kedzie where they found plaintiff and one other man.

While Costello acknowledged at the trial that he had struck plaintiff with the Ford, *fn1 he stated that as he made the left-hand turn into 160th Street, he never saw plaintiff at the intersection. He testified that there were no sidewalks on the west side of Kedzie, no overhead street lights or traffic signals at the intersection of 160th and Kedzie, although the shopping center's parking lot was equipped with lights.

The plaintiff testified that on the date in question he operated a gasoline service station located at 159th Street and Central Park. After work at approximately 7 P.M., plaintiff went with his wife and a friend, Bill Horman, to a club across the street from the gas station, where he consumed four or five 6-ounce glasses of beer, leaving at approximately 8:30 P.M., his wife and friend having left before him. From the club plaintiff, accompanied by Les Clark and Ed Gruhlke, proceeded to a liquor store where plaintiff drank one more beer and then left at 9:20 or 9:30 P.M. to walk home. Plaintiff began to walk to his home at 16140 South Kedzie Avenue (about one-quarter mile from the liquor store) by going in an eastward direction down 159th Street to Kedzie Avenue where he turned and proceeded in a southerly direction down Kedzie Avenue, and as he approached 160th Street and Kedzie, plaintiff noticed an oncoming car approximately three-quarters of a block away. He continued walking and, while crossing 160th Street, looked up again and saw that "there were two lights right on top of me." At this point plaintiff was on the road's shoulder, 4 to 5 feet south of the paved portion of 160th Street and 3 to 4 feet from the west edge of Kedzie. Realizing that the car was going to hit him, plaintiff tried "to roll away from it." As the left side of plaintiff's body came in contact with the left side of the auto, he grabbed the rear view mirror and broke it off the car, then flipped into the air and came down on his back and head. Plaintiff stated that he lay stunned but saw taillights go in a westerly direction down 160th Street. He next remembered Officer Casper and Costello arriving on the scene asking him if he had been hit by a car, and he acknowledged that he had been, indicating the direction in which the car headed, and the officers then pursued it. Plaintiff's employee, Larry Engle, then came by the scene and drove plaintiff home.

Asked to describe his condition at that time, plaintiff replied "terrible shock" and stated that he felt pain in every part of his body, particularly his neck and lower back.

On cross-examination plaintiff stated that he had nothing to eat at the club but that he had a late lunch at 4 or 4:30 that afternoon; that the weather was cold and frosty with a very slight accumulation of snow; and that he had no difficulty walking other than just watching so as not to slip.

Edward Gruhlke stated that he saw plaintiff on the night in question at the club where plaintiff drank four or five beers. Asked his opinion by plaintiff's attorney concerning the condition of plaintiff's sobriety when he left the club, Gruhlke stated Doria "was all right as far as I know." The witness then accompanied plaintiff to the store where he stated Doria had one or two beers. Questioned regarding the condition of plaintiff's sobriety when he left the liquor store, the witness replied that plaintiff was "All right, he was sober as far as I could see."

Lawrence Engle had been employed in plaintiff's gas station during 1967. On December 23, 1967, he and plaintiff's son locked up the station around 10 P.M. and, after he had driven plaintiff's son home, the witness drove down 160th Street toward Kedzie when he saw "headlights come flying down the street from the direction of Kedzie." When the witness came to 160th Street and Kedzie he stopped, noticed plaintiff on his right on the road's shoulder (south of 160th Street), exited from his car, and helped plaintiff up.

Asked by plaintiff's attorney whether he noticed any odor of alcohol about the plaintiff, Engle responded that he did not and, when asked whether plaintiff was inebriated, the witness stated: "In my opinion he wasn't." Engle further testified that, while riding to plaintiff's home, he noticed no odor of alcohol about him and when asked if plaintiff appeared sober to him, the witness replied: "Yes, he was shook up a lot."

Beverly Doria, plaintiff's wife, testified that on the evening in question she dropped her son off at the gas station, met her husband, and both proceeded across the street to the club; that she consumed a soft drink, left the club before her husband so as to do some shopping, and next saw him when Lawrence Engle brought him home. She testified that plaintiff could not stand or walk without someone helping him, and, when asked by counsel for plaintiff whether he was drunk or not, she replied: "No, he most certainly was not."

Mrs. Doria drove plaintiff to the Markham Police Station and left him in the car while she entered the station where she turned in the mirror her husband had pulled off the car. Describing plaintiff's physical position in the car, she stated: "He was slumped, he couldn't sit up." Inside the station the witness spoke to Sergeant Kalivoda who then went out to her car with her. In talking to the sergeant plaintiff said that he was stiff and sore and wanted to go home.

On cross-examination, when questioned as to whether she observed any smell of liquor about the plaintiff, Mrs. Doria stated: "No, I did not." She further testified that she was familiar with the smell of beer, did not smell beer on her husband that evening and acknowledged that her husband was in a dazed condition.

James Kalivoda, called by the defendants, was a sergeant with the Markham Police Department at the time plaintiff incurred his injuries. He testified that Officers Costello and Casper had called to advise him of the accident and that Mrs. Doria came to the station at about 10:30 or 11 P.M. requesting the witness to persuade her husband to go to the hospital. Kalivoda did go out to the car to converse with plaintiff, ...

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