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Wanner v. Keenan

SEPTEMBER 27, 1974.

GUSTAVE WANNER, PLAINTIFF-APPELLEE,

v.

HARRY ALFRED KEENAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. HENRY CALDWELL, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 23, 1974.

As the result of an auto collision, plaintiff sued for damages caused by defendant Keenan's negligence and by the acts of one Kramer, d/b/a Echo Lake Inn, in selling alcoholic beverages to defendant. At the close of evidence, the trial court directed a verdict against defendant on the issue of liability. The jury found Kramer not guilty and assessed damages against defendant in the sum of $17,500.

Defendant appeals contending that reversible error occurred when the court (1) directed a verdict against him, (2) allowed plaintiff, in rebuttal argument, to make improper and prejudicial remarks, (3) improperly instructed the jury, (4) failed to admit all photographs of the accident scene, and (5) denied his motion to correct the record. Defendant also claims that damages awarded are excessive.

After spending a misty winter afternoon drinking and conversing with another patron at the Echo Lake Inn, defendant, at about 4:30 or 5 P.M., drove in a southerly direction along Route 59. As he approached the intersection of Route 14, he slowed to a speed of 10 to 15 m.p.h., noticed the traffic light turn green for his direction and observed a stationary car, its left turn signal flashing, in the inner northbound lane. For the most part, defendant's view of the northbound curb lane of Route 59 was obstructed by that vehicle. Without stopping, defendant made a left turn onto Route 14. Plaintiff's car, being driven by his son, simultaneously approached the intersection from the south in the curb lane of Route 59, traveling at a speed of approximately 25 m.p.h. Plaintiff was in the front passenger's seat, his wife in the rear. When about 6' from the intersection, plaintiff noticed defendant's car entering their path; he shouted to his son to "look out" as the son applied the brakes and swerved in an attempt to avoid a collision. In the southeast quadrant of the intersection, plaintiff's car struck the right front fender of defendant's car and, on impact plaintiff's head struck the right visor.

As a result of the occurrence, defendant pled guilty to the charge of reckless driving.

• 1 Defendant claims that the question of his negligence and that of plaintiff's contributory negligence were matters to be resolved by the jury and argues that the trial court erred by directing a verdict on the issue of his liability. That argument, however, cannot survive the test of the Pedrick rule whereby a trial court may properly direct a verdict if the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510 (1967).

• 2 Concerning the issue of defendant's negligence, his duty of ordinary care in making a left turn across oncoming traffic with the right of way is to ascertain whether or not he has a safe interval to make the turn, and to yield to oncoming traffic which is so close as to constitute an immediate hazard. (Ill. Rev. Stat. 1971, ch. 95 1/2, § 11-902.) The evidence, when viewed in its aspects most favorable to the defendant, established (by defendant's own admission) that his view of the curb lane was obstructed by a stationary car in the approaching center lane, that he could see only a short distance in the curb lane due to this obstruction, that in spite of these facts he proceeded to make his left turn without stopping to ascertain whether there was a safe interval in which to proceed, that he had had 4 or 5 shots of whiskey and 2 12-ounce bottles of beer at the tavern, that he felt a little drowsy but "all right," and that he pled guilty to reckless driving. After the impact, defendant continued through the intersection a little way before he got out of his auto to look at the damage. He testified that he felt dazed and wondered what hit him. A police officer testified that when he arrived on the scene, he asked defendant to pull his car to the end of a driveway; that defendant drove his car on the lawn; that he observed a heavy odor of alcohol coming from Mr. Keenan; that defendant could not find his identification and that when getting out of the car, defendant stumbled and could not walk on his own. The officer drove defendant to the police station where he conducted visual tests on the defendant; he testified that, in his opinion, defendant was under the influence of intoxicating liquor. Defendant denied having trouble finding his identification or having driven on a lawn. He also testified that he was not physically hurt in the accident and that he was in control of his physical and mental faculties.

Under these facts, we find the evidence of defendant's negligence so overwhelming that no contrary verdict could ever stand.

• 3 Regarding the question of plaintiff's contributory negligence, defendant argues that there was evidence of plaintiff's failure to exercise ordinary care for his own safety, that there was evidence which indicated the driver was negligent and that such negligence is imputable to the plaintiff as an owner-passenger. When viewed in its aspects most favorable to the defendant, evidence shows that plaintiff, upon recognizing the immediate hazard, shouted a caution to the driver, and that the driver, traveling at a slow rate of speed, had commenced to apply his brakes at the time of plaintiff's warning and that he then swerved to avoid a collision. This evidence stands uncontradicted. Defendant claims that because, during cross-examination, plaintiff could not recall whether his headlights were on at the time of the collision and that therefore a question of fact existed as to plaintiff's contributory negligence and the negligence of his driver. We disagree. No evidence was offered to show that plaintiff's lights were not burning. By itself, plaintiff's lack of specific recollection on this point is insufficient to warrant a jury's conclusion that plaintiff was guilty of contributory negligence or that his driver was negligent. Having reached these conclusions, the doctrine of imputed negligence is not applicable. Again, in accordance with the Pedrick rule, the trial court properly directed a verdict against defendant on the issue of liability.

Defendant alleges reversible error occurred during plaintiff's rebuttal argument in that (a) plaintiff indicated a negative inference could be drawn from the fact that defendant had not called as a witness the tavern patron with whom he had conversed during that afternoon; (b) plaintiff appealed to the jury to consider sympathy as an element of damages; and (c) unwarranted personal attacks upon defense counsel were not stricken nor was the jury instructed to disregard the remarks.

• 4 Under the criteria of IPI — Civil 2d 5.01, it is true that no negative inference may be made from the failure to produce a witness if, as here, the witness was equally available to both parties. The record reveals, however, that the negative inference of the remark was directed against Kramer, not Keenan, and it did not therefore work to defendant's prejudice.

• 5 The record belies defendant's claim that plaintiff raised the element of sympathy. As plaintiff's counsel clearly stated:

"[Defense counsel] says don't give him any sympathy, and he mentioned the word sympathy about twenty times during the course of this trial. I've never mentioned the word sympathy. He's had sympathy from his family and friends. We are not here seeking sympathy. We are ...


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