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Wilsey v. Schlawin

OPINION FILED DECEMBER 12, 1975.

DENNIS WILSEY, PLAINTIFF-APPELLEE,

v.

CHESTER SCHLAWIN, DEFENDANT. — (THE VILLAGE OF MAYWOOD, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT AS MODIFIED UPON DENIAL OF THE PETITION FOR REHEARING:

The instant appeal arises from an action to recover damages for the personal injuries plaintiff sustained in an accident involving the vehicle he was driving and that which defendant Chester Schlawin was driving on a street in the defendant Village of Maywood. Following a bench trial, judgment in the amount of $23,221.10 was entered for plaintiff against the defendant Village. The Village appeals, contending that (1) the police report showing its stop sign to be inoperative two days previous to the accident was improperly read into the record; (2) it did not have actual or constructive notice that its sign was inoperative in sufficient time to take remedial measures; (3) its failure to maintain its stop sign was not the proximate cause of plaintiff's injuries; and (4) the damages awarded to plaintiff were excessive.

The following evidence pertinent to this appeal was adduced.

For the plaintiff:

Chester Schlawin

On November 23, 1969, he was driving his car west on Superior Street, an east-west street in the Village of Maywood. As he neared Fifth Avenue, a north-south main street, at a speed of 25-30 miles per hour, he did not see any stop sign or traffic signal regulating westbound traffic crossing Fifth Avenue, and his view at the intersection was unobstructed. He was not familiar with the intersection and did not know that Fifth Avenue was a main street. He looked to his left and, seeing no northbound traffic on Fifth Avenue, he proceeded through the intersection. As he passed the center line of Fifth Avenue his car was hit broadside by plaintiff's southbound car. He could not recall looking to his right for southbound traffic before proceeding across Fifth Avenue, and he did not see plaintiff's car until the collision. At the moment of impact, his speed was approximately 25 miles per hour.

Plaintiff Dennis Wilsey

On the day of the accident, he was driving his car south on Fifth Avenue at a speed of 25-30 miles per hour. The street was dry and the air was clear. Upon approaching the intersection of Superior Street, he saw no stop signs regulating traffic. He did not slow down and looked straight ahead. He never saw Schlawin's car approaching from the left.

Sergeant Mac Woods, under section 60.

He is a Maywood police officer and investigated the accident involving plaintiff and defendant Schlawin. When he arrived at the scene, he observed that the stop sign controlling westbound traffic on Superior Street at the intersection of Fifth Avenue was lying on the ground. He could not recall when the stop sign had first been knocked down. Plaintiff's counsel unsuccessfully attempted to refresh his recollection of that fact with the accident report he had filed immediately after his investigation. Thereafter, plaintiff's counsel attempted to admit a portion of the accident report into evidence as a past recollection recorded or an admission against interest. Defendant Village's counsel objected, and the court, while sustaining the objection, ordered Woods to read the contents of the report:

"Driver of vehicle No. 1 stated he was travelling west in his auto and he was struck by driver No. 2 who was travelling south on Fifth Avenue and Superior Street. Stop sign located at Fifth Avenue and Superior Street for westbound traffic had been knocked down for two days previous to this accident. Due to the fact that the stop sign was down, driver of vehicle No. 1 was unaware that he had to stop for the intersection."

Woods could not recall how he had learned that the stop sign had been knocked down two days previous to the accident, but adopted his deposition, in which he speculated that the information came from a note in the police station or a complaint by a citizen.

For the defendant ...


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