APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
A wrongful death action was brought by plaintiff on behalf of his deceased daughter, Jamie, against Jeffrey Calvin (defendant), the host driver in whose automobile the deceased was a passenger. Jeffrey's father, Robert, and the driver of the other automobile involved in the occurrence, Lucio Ramirez, were also named as co-defendants. The Calvins brought suit against Ramirez who then brought suit against Jeffrey Calvin. All actions were consolidated and tried together. The trial court granted a directed verdict on all actions but the wilful and wanton count in plaintiff's case against the defendant. *fn1 The jury found for the defendant, which verdict is challenged on appeal. None of the other verdicts are so challenged.
The issues presented for review are:
(1) whether the trial court erred in the admission of certain evidence;
(2) whether the court erred in instructing the jury;
(3) whether the court erred in denying plaintiff's motion for a directed verdict that defendant was guilty of wilful and wanton misconduct; and
(4) whether the jury's verdict that defendant was not guilty of wilful and wanton misconduct was against the manifest weight of the evidence.
Just before dusk about 8:30 p.m. on July 1, 1970, a red 1966 Chevrolet four-door sedan, operated by Ramirez, travelling northwest on the inside lane of U.S. Highway 14 (also known as Northwest Highway) in Palatine, Illinois, collided with the right side of a dark green 1967 or 1969 MG two-door sedan, operated by defendant, travelling north on Quentin Road, in which plaintiff's decedent was riding as a passenger. It was undisputed that northbound traffic on Quentin was controlled both by a stop sign on the southeast corner of Quentin and Route 14 and a red flashing light suspended in a light fixture by a cable or cables over the center of the intersection, and that the northwestbound traffic on Route 14 was controlled by an amber flashing light in the same light fixture facing southeast. It was stipulated that the collision was the cause of Jamie's death.
The investigating officer, an Illinois State trooper, determined, through his post-collision measurements and interview with Ramirez, the distances the vehicles had travelled after impact. Defendant's MG came to rest 252 feet from the point of impact and 18 feet south of Route 14, while Ramirez's Chevrolet came to rest 144 feet from the point of impact in a Sinclair station on the northwest corner of Route 14 and Quentin after knocking down a gas pump and a flagpole. The trooper testified a fire resulted at the Chevrolet's resting place. He was unable to uncover any eyewitnesses to the collision. He measured Route 14, a four-lane highway, at 44 feet wide and Quentin Road, a two-lane road at 18 or 19 feet wide. The speed limits governing the intersection were 50 m.p.h. for southeastbound Route 14, 55 m.p.h. for northwestbound Route 14, and 45 m.p.h. for north and southbound Quentin Road.
The record established that southeast of Quentin, Route 14 inclines upward towards the intersection, affecting the visibility of a vehicle stopped at the stop sign on the southeast corner of the intersection. Defendant, who had travelled Quentin before, testified to his ability, on occasions prior to the collision when stopped at the stop sign, to see southeast down Route 14 to a bend in the road which he estimated at trial as "a couple of blocks away" and at his deposition as "300 yards away." Plaintiff presented evidence on rebuttal that the bend was .23 miles or 1232 feet southeast of the intersection as measured by a car odometer.
Defendant testified he had driven the MG for ten months prior to the collision and was familiar with the intersection, stop sign and flashing lights for ten years. As to the occurrence itself, defendant asserted he could remember nothing beyond driving north on Quentin until he woke up in the hospital the day after the collision. Defendant attested he was knocked unconscious in the collision, and that he had a concussion. Defendant's post-collision examining physician stated that in his opinion defendant had symptoms of retrograde amnesia as to the collision.
Ramirez testified he had lived in Palatine four and a half years prior to driving home on Route 14 at "about 45" m.p.h. with a "clear and open view" of the intersection. He did not, before reaching the intersection, see any other traffic travelling in either direction on Route 14. Neither did he see the MG as an automobile before the collision, although he did see a brown or black "blur" or "something black" ten feet in front of him as he approached the intersection. While he neither sounded his horn nor applied his brakes, he did not hear any other horn sounding either.
Defendant's counsel called a Walter Oliver, a consulting engineer, to testify as a second witness in an afternoon session of the trial. The record shows defendant's counsel had not decided, prior to adjournment for lunch, whether to call Oliver. In conference immediately after lunch, plaintiff's counsel moved to be allowed to depose any expert defendant might call. Defendant's counsel advised the court the witness would only testify to the seconds which elapse when automobiles travel certain distances at different rates of speed and to specifications of the MG at issue. The court denied the motion to depose subject to testimony adduced from Oliver not exceeding these limitations.
After eliciting Oliver's qualifications, including his qualifications to calculate the seconds it will take a vehicle to cover a certain ...