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Kallas v. Lee

SEPTEMBER 3, 1974.

GUST A. KALLAS, PLAINTIFF-APPELLANT,

v.

JEANNE R. LEE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. C.M. WILSON, Judge, presiding.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Plaintiffs initiated a complaint for alleged injuries and damages sustained as a result of a motor vehicle mishap. Robert H. Lee was dismissed from the case on plaintiffs' motion. At the conclusion of the trial, the jury returned a verdict upon which judgment was entered in the amount of $15,000 in favor of plaintiff, Gust A. Kallas, and against defendant, Jeanne R. Lee. Plaintiff Kallas appeals from that judgment.

Defendant Jeanne R. Lee was called as an adverse witness pursuant to section 60 of the Civil Practice Act. (Ill. Rev. Stat., 1973, ch. 110, par. 60.) She testified that at about 8 A.M. on January 29, 1968, she was involved in an automobile mishap at the intersection of Golf Road (Route 58) and Route 83. Defendant testified that the weather was overcast and rainy and the road surface near the site of the occurrence was wet. At the time defendant was traveling northbound on Route 83 which has two lanes northbound and two lanes southbound at the intersection with Route 58. There were traffic control signals located on the four corners of the intersection. As defendant approached approximately one block from the intersection of Routes 58 and 83, she was traveling in the right-hand lane at about 25 miles per hour. Defendant was following the northbound traffic which she stated was continuous, heavy traffic. Defendant did not see or recall the color of the traffic signal at Route 83 at any time prior to entering the intersection. Prior to the occurrence, defendant saw a "big huge yellow object" moving toward her. At the time defendant saw the "object" her vehicle was traveling at between 25 to 30 miles per hour and she had entered the intersection. Defendant testified that the yellow object was traveling in an easterly direction on Route 58 and it collided with her car.

Marion Krawczyk was called as a witness on behalf of plaintiff and testified that on January 29, 1968, he was employed by the State of Illinois. At the time of the accident, he was driving "a ton and half" dump truck owned by the State of Illinois and he had two passengers in the truck, Joseph Levatino, who was seated in the middle, and plaintiff Kallas, who was seated on the passenger side of the truck. The weather was misty and the pavement wet. Prior to the collision Mr. Krawczyk was driving in an easterly direction on Route 58 at approximately 25 to 30 miles per hour. Prior to and during the time the truck entered the intersection, the traffic signal for east and westbound traffic on Route 58 was "green." As he was entering the intersection, the witness saw a car which was traveling northbound on Route 83 at approximately 40 to 50 miles per hour. When he observed this vehicle, Mr. Krawczyk tried to stop and cut his truck wheels "to the right to try to avoid the direct hit." The vehicles collided in the middle of the intersection. After the collision, Mr. Krawczyk observed the plaintiff lying unconscious on the pavement with his head "split open."

Plaintiff Kallas testified that on January 29, 1968, he was employed as a laborer by the State of Illinois. Mr. Kallas testified that on the date of the occurrence, he started work at 7:30 or 8 A.M. and that he was riding in a truck owned by the State of Illinois. The truck was being driven by Marion Krawczyk. Joseph Levatino was also riding in the vehicle. Plaintiff did not remember the facts and circumstances concerning the occurrence; his first memory was when he awoke in Holy Family Hospital in Des Plaines. Plaintiff testified that when he awoke, he noticed that his head was bandaged and there were cuts on his face. Plaintiff testified that while he was in the hospital, he saw two doctors, Dr. Bederman and Dr. Duffy.

After plaintiff was discharged from the hospital, he experienced numbness in the front and top of his head, dizzy spells, pain in his left shoulder, left knee and back, and had to urinate an excessive number of times during the nights. Plaintiff described in detail the actions he took and the treatment he received in order to alleviate these conditions. Plaintiff testified that after the accident, he did not return to his former employment and that he went to work as a county traffic surveyor.

Wilburt H. Gransen was called as a witness on behalf of plaintiff and testified that on the morning of this occurrence, he was driving in a southerly direction on Route 83. When he arrived at the intersection of Route 83 and Route 58, he stopped because the traffic signal located on the west corner facing him was "red." The witness testified that there were four stoplights, one on each corner of the intersection. Mr. Gransen's vehicle was the first car in line at the intersection and at the time the traffic signal for southbound traffic was red, he observed a northbound vehicle enter the intersection. The witness also observed an eastbound State of Illinois truck approaching the intersection of Route 58. The truck collided with the northbound automobile and at the time of the collision, the traffic signal for southbound traffic was "red."

On cross-examination, Mr. Gransen testified that he did not observe the traffic signal on the northbound side of Route 83 and did not know whether the signal was functioning.

Plaintiff argues on appeal that the trial court erred in refusing to admit photographs taken by plaintiff's treating physician depicting a laceration to plaintiff's head. The photographs which plaintiff refers to are marked as plaintiff's Exhibits No. 3 and 4 for identification and are color photographs depicting plaintiff's head and an evulsion flap in the middle portion of plaintiff's head. Defendant objected to the admission of these exhibits on the basis that they were "too gruesome" and that their admission would be prejudicial. The trial court sustained defendant's objection and expressed the opinion that admission of the photographs "would inflame and influence the passion and prejudice of the jury."

• 1 As this court stated in Darling v. Charleston Community Memorial Hospital, 50 Ill. App.2d 253, 321, 200 N.E.2d 149, 183:

"If evidence of this type has a reasonable tendency to prove some material fact in issue, such evidence may properly be admitted, and the question is one properly within the discretion of the Trial Court; if a photograph is accurate, properly identified, and relevant, the mere fact it may have a tendency to prejudice the jury is not sufficient to justify its exclusion; it is a matter within the Court's discretion: Pitrowski etc. v. New York C. & St. L.R. Co. (1955), 6 Ill. App.2d 495, 128 N.E.2d 577. * * * Evidence having a natural tendency to establish the facts in controversy should be admitted; competent evidence may not be excluded merely because it might arouse feelings of horror or indignation in the jury; questions as to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the Trial Court, and the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant: People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783."

In Darling, this court upheld the propriety of admitting a photograph which depicted plaintiff's leg prior to amputation, and in so ruling observed:

"A photograph of this type may be proper to give the jury a better understanding of the medical terminology in evidence and the demonstrative evidence which could not be completely expressed by the written or spoken word: People v. Donaldson (1956), 8 Ill.2d 510, 134 N.E.2d 776. And see: People's Gas Light & Coke Co. v. Amphlett (1900), 93 Ill. App. 194; McNally v. Chauncy Body Corp. (1942), 315 Ill. App. 190, 42 N.E.2d 853." 50 Ill. App.2d at 321.

• 2, 3 In the present case, we have examined the photographs and do not believe that they are of such a nature as to unduly cause prejudice or inflame the jury's passion. The photographs vividly and accurately depict the injury which plaintiff sustained and were relevant to the issue concerning the nature and severity of plaintiff's injury and the resultant pain and suffering. Moreover, we are of the opinion that the utilization of demonstrative evidence in cases such as the present case should be encouraged. Plaintiff's injury was sustained on January 29, 1968, and the case was tried more than 3 years later. During this period of time plaintiff's injury healed considerably and his physical condition was substantially ...


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