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Dooley v. Darling

MARCH 17, 1975.




APPEAL from the Circuit Court of Madison County; the Hon. JOSEPH J. BARR, Judge, presiding.


This is an appeal from judgments entered on jury verdict in the circuit court of Madison County on a wrongful-death complaint and a cross-claim for wrongful death. Judgment was entered for the plaintiff on the complaint, and for defendant on the cross-claim.

The plaintiff-appellee, Henry G. Dooley, as the administrator of the estate of Adella Dooley, brought an action in the circuit court of Madison County for the wrongful death of Adella Dooley against defendant-appellant, Owen Darling, as administrator of the estate of Patrick Darling, and against defendant-appellant, Mary Gregus, as administratrix of the estate of Anthony Gregus. Adella Dooley died as a result of an automobile collision between an automobile driven by Patrick Darling, in which she was a passenger, and an automobile driven by Anthony Gregus. Patrick Darling also died as a result of this collision. Subsequently, Anthony Gregus died from causes not related to this collision. Defendant Darling filed a cross-claim against defendant Gregus, as administratrix of the estate of Anthony Gregus, for the wrongful death of Patrick Darling. The jury returned verdicts in favor of plaintiff-appellee and against both defendants in the sum of $35,000 on the complaint and in favor of defendant Gregus on the Darling cross-claim. Judgment was entered on the verdicts by the trial court. This appeal followed the trial court's denial of defendant Darling's and defendant Gregus' motions for judgments n.o.v. and motions for a new trial. Both defendants appeal the judgment entered in favor of plaintiff-appellee. Defendant Darling also appeals the judgment entered in favor of defendant Gregus on the cross-claim.

The numerous allegations of error contained in the briefs submitted by the defendants Gregus and Darling raise the following issues: (1) Whether the evidence is sufficient to sustain the verdicts against both defendants and for defendant Gregus on defendant Darling's cross-claim; (2) whether the plaintiff's decedent was guilty of contributory negligence as a matter of law; (3) whether the trial court erred in ruling on certain objections to evidence; (4) whether the jury was properly instructed; and (5) whether the verdict was excessive. Before addressing these issues it is necessary to review the evidence presented in the trial court.

We shall begin with the undisputed evidence. On October 10, 1969, around 1:45 A.M., a two-car collision occurred at, or in the close proximity to, the intersection of Route 203 and Central Avenue in Madison County. Adella Dooley and Patrick Darling, both 21 years old, occupied a 1966 Volkswagen, which was owned by Dooley's father, although apparently driven on this occasion by Patrick Darling. The other car, a 1969 Oldsmobile, was driven by Anthony Gregus, a young man about the same age. Adella Dooley and Patrick Darling died as a result of the collision. Although Gregus survived the collision, he later died of causes unrelated to the crash. There were no other persons involved in, or known eyewitnesses to, the collision.

Route 203 runs north and south. Central Avenue approaches Route 203 from the east, forming a T-intersection. At this location Route 203 is an 18-foot-wide two-lane highway and Central Avenue, also a two-lane highway, is 24 feet wide. This intersection is not within corporate limits of any municipality.

State Trooper James Ezell, witness for the plaintiff, arrived at the scene of the crash shortly after it happened. He testified that he found Darling on the driver's side of the Volkswagen and Dooley on the passenger's side. Both appeared to be already dead. Trooper Ezell also found Anthony Gregus at the scene of the collision. Gregus was injured and incoherent. After taking measurements at the scene, Trooper Ezell determined that the Volkswagen was 162 feet from the north edge of Central Avenue and 4 feet east of the edge of the pavement on Route 203. The Volkswagen faced west. The Gregus Oldsmobile was found 27 feet south of the Volkswagen, partially on the roadway of Route 203, facing south. Trooper Ezell located debris in the northbound lane of Route 203, just north of Central Avenue. When questioned how far north of Central Avenue the debris was found, Trooper Ezell stated on direct examination that the debris was 15 to 20 feet north of the intersection of Central Avenue; but later on cross-examination, he testified that the debris was no more than 10 to 15 feet north of an imaginary centerline for Central Avenue, and could even be less than 10 or 15 feet from the center of Central Avenue, in view of the fact that he did not measure this distance. Gouge marks were found in the northbound lane of Central, north of the debris. The officer found no evidence of black skid marks (other than the gouge marks) in either the north or southbound lanes of Route 203. Trooper Ezell opined that prior to the collision, the Volkswagen was traveling south and at the time of impact was attempting to turn left onto Central Avenue. He further stated that the Oldsmobile was going north and that the crash occurred in the northbound lane of Route 203 at the location of the debris or slightly south of it. Ezell testified that photographs of the scene and the vehicles accurately portrayed conditions existing at the time he investigated the accident. Photographs of the vehicles indicated damage to the front of the Gregus Oldsmobile and to the right side of the Volkswagen. Trooper Ezell explained that the speed limit on Route 203 in this vicinity was 35 miles per hour, and that the area was residential or commercial in nature. He acknowledged that there were no restrictions or prohibitions against left-hand turns onto Central Avenue for traffic headed south on Route 203. The area near the intersection was not illuminated by street lights. The pavement on Route 203 in that vicinity was rough and uneven.

State Trooper Ezell was unable to state whether the Gregus vehicle had its headlights on at the time of the collision, or whether the Gregus vehicle was visible to the other vehicle immediately prior to the crash. His only testimony in this regard was that when he observed the Gregus car, the headlights were damaged. Ezell did not observe any marks on the roof of either automobile. He testified that the wheels of both cars were damaged to the extent that "it wouldn't appear likely" that either car was in a condition to roll on its wheels to the position where it was found.

Following the collision, Edward Warner, ambulance driver and deputy coroner, took Anthony Gregus to the hospital. While in the emergency room, Warner, acting as deputy coroner, took an oral statement from Gregus. After being placed under oath and after being orally advised that he had the right to counsel, Gregus, the driver of the Oldsmobile, stated he was going about 50 miles per hour at the time of the collision. Both defendants objected to the statement; the trial court admonished the jury that the statement was admissible only against defendant Gregus. Over objection of defendant Darling but with the express approval of plaintiff Dooley, defendant Gregus elicited the remainder of the statement on cross-examination. Included therein were the following statements:

"A. I saw another car, small, coming towards me and pulled in front of me in my lane.

Q. Was [sic] your headlights on?

A. Yes.

Q. Was [sic] the other car's headlights on?

A. Yes.

Q. What was the condition of the pavement?

A. It was dry."

Henry Dooley, father of Adella, testified that he visited the scene of the accident approximately 8 hours after its occurrence. By the time he arrived the Oldsmobile had been removed. He observed fresh skid marks "which appeared to have been caused by metal scraping the roadway." The skid marks were located in the northbound lane of Route 203. Dooley also identified pictures depicting damage to the Volkswagen, over the objection of defendant Gregus only, and testified regarding his deceased daughter's careful habits. Dooley stated that when he had ridden with his daughter, she drove in accordance with the speed limits and with other traffic laws. Without objection by either defendant, he testified that his daughter had taken driver's training in high school; that she was a very intelligent girl who had maintained a 4.91 average on a 5.0 scale and had frequently made the dean's list; and that she was a normal, healthy girl who helped her mother with housework, performing this work safely.

Over objection of defendant Gregus only, Delores Dooley, mother of plaintiff's decedent, testified that her daughter had driven an automobile since she was 16 years old and that ...

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