APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN C. LAYNG, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The plaintiffs herein filed a four-count complaint for personal injuries and loss of consortium. The trial court directed a verdict in favor of the defendant on the two wilful and wanton counts and the jury returned a verdict of not guilty on the two negligence counts. The plaintiffs filed a motion for a judgment notwithstanding the verdict or a new trial, which was denied. They appeal.
On the night of January 22, 1972, plaintiff David Coleman was driving easterly on Harrison Avenue in the City of Rockford. His car ran out of gas approximately two blocks east of the intersection. He parked the car off the road and started walking in a westerly direction on the south shoulder of Harrison Avenue toward a gas station. The defendant, driving his vehicle in a easterly direction on Harrison Avenue, came to the intersection of 20th Street where he stopped for a red light. Harrison Avenue is four lanes wide west of the intersection of 20th Street but it narrows to two lanes east of the intersection. From the record it appears that the defendant struck the plaintiff at a point 50 feet east of the intersection as the glasses of the plaintiff were found at that point. Plaintiff was carried on the hood and the windshield of defendant's car until the car came to a stop, and he was found 26 feet in front of the defendant's vehicle, lying on the highway.
There were conflicting accounts of how the accident occurred. Plaintiff testified that he was walking 6 feet off the edge of the road immediately before he was struck. The next thing he remembered was waking up in the hospital. Defendant testified that he was in the center lane of Harrison behind four cars when they stopped for the red light. When the light changed, the first car turned left and the defendant went straight through the intersection behind the other cars in the lane which would become the eastbound lane where the road narrows after the intersection. Defendant testified that he was going 20-25 m.p.h. He further testified that he did not see plaintiff until plaintiff "slipped or stumbled" onto the road approximately three feet in front of the defendant's vehicle. Defendant further testified that after he had hit the plaintiff, he hit the brakes very slowly and came to a gradual stop, without skidding.
However, the record reveals that defendant had made several prior inconsistent statements with regard to how the accident occurred. Police officer Morris testified that the defendant told him at the time of the occurrence that he was eastbound on Harrison and he came up behind a line of cars, one of which was making a left hand turn onto 20th Street. Defendant said he went around the line of four or five other cars in the curb lane and continued on Harrison, where it had become two lanes. Additionally, Officer Miller testified that defendant told him that he was eastbound in the curb lane of Harrison. This would have placed the defendant in the curb lane which ends at the intersection, causing a driver to bear left in order to reach the paved portion of the road instead of the shoulder. Further, at his deposition, contrary to his testimony, defendant stated:
"My car skid along for a while until I came to a complete stop about 40 somewhere around there 40 feet somewhere around there 35, 40. Somewhere around there."
In support of plaintiff's theory of how the accident occurred, Officer Morris testified that he investigated the scene of the accident after the plaintiff had been placed in the ambulance. He testified that he found skid marks which commenced 50 feet from the intersection. There were two skid marks to approximately where the defendant's car came to a stop. The right skid mark started at a point 4 1/2 feet off the highway on the shoulder and extended for 20 feet parallel to the left-hand skid mark. The left skid mark began 20 inches from the south edge of the pavement and continued for 56 feet. Officer Morris expressed the opinion that these skid marks were left by defendant's automobile.
There was also testimony at trial concerning the alleged intoxication of the defendant at the time of the occurrence. Defendant testified that he had "about four beers" before the accident and that he was not intoxicated. Officer Morris in his testimony stated that in his opinion the defendant was, in fact, intoxicated. Defendant called Officer Miller who stated that he interviewed the defendant at the scene and that he also interviewed the defendant at the police station. Officer Miller testified that he noticed nothing about the odor of alcohol on the defendant. However, on cross-examination, Officer Miller admitted that he signed a "Motor Vehicle Intoxication Report" as to the defendant and upon redirect examination stated that the words "driving under the influence" were in his handwriting. Additionally, Officer Rote, one of the investigating officers at the scene, testified that he was within three to four feet of the defendant, he noticed the odor of alcohol on the defendant and that in his opinion the defendant, Harold Williams, was intoxicated.
The plaintiffs really have raised three issues herein, the first being that the trial court abused its discretion in denying plaintiffs' motion for a judgment n.o.v. on defendant's liability and new trial on damages or, in the alternative, a new trial on all issues because the verdict was contrary to the manifest weight of the evidence. The second contention presented is that the court erred in dismissing the wilful and wanton counts of the complaint after the close of the plaintiffs' case. Lastly, plaintiffs contend that the court committed reversible error by permitting defendant to show that the plaintiff had been in taverns on the afternoon and evening in question where there was no evidence of intoxication.
We shall first consider the last contention of the plaintiffs. Prior to trial plaintiffs' counsel made a motion in limine to preclude the defendant from using "any testimony, remarks, questions, items of evidence or argument" which might inform the jury that the plaintiff had been drinking beer in the Victory Tap and the V & J Tap on the afternoon and evening in question. The basis of this motion was that there was no evidence whatsoever of the intoxication of the plaintiff. In support of this motion it was stated that the depositions of the investigating officers disclosed that only one of the five officers could recall noticing an odor of alcohol on the plaintiff but it was not strong. It is to be noted that the officer who rode with the plaintiff in the ambulance to the hospital was one of the four who did not notice an odor of alcohol on the plaintiff. Also in support of this motion was the deposition of Neil Michael that he had been with the plaintiff at both the Victory Tap and the V & J Tap on the afternoon and evening in question and that when he left the plaintiff at 10 p.m. plaintiff was not under the influence of liquor. Likewise, in his deposition Thomas Davig stated that he was with the plaintiff at the Victory Tap between 6 and 8 p.m. and that when he left the plaintiff was sober. Further in support of this motion plaintiff stated in his deposition that he and Neil Michael went to the Lunde Truck Sales and about 3 that afternoon went to the V & J Tap where he had two bottles of beer and two sandwiches. They left the V & J Tap at 4 and went back to Thompson's Landscaping to work on Neil Michael's truck. They had nothing to drink until about 6 when they went to the Victory Tap. At the Victory Tap plaintiff had a beer and a second beer with a poorboy sandwich and a third beer after finishing the sandwich. The trial court entered an order which provided:
"IT IS HEREBY ORDERED that the Defendant, HAROLD A. WILLIAMS, and Korf, Pfeil and Graves, his attorneys, refrain from using any testimony, remarks, questions, items of evidence, or arguments which might inform the Jury of any of the following facts or particulars:
1. That Plaintiff, David B. Coleman, had consumed three beers or any other quantities of beer on January 22, 1972 prior to the occurrence in question.
2. That a moderate odor of alcohol or an odor of alcohol not so strong was observed about the Plaintiff, David B. Coleman, at the scene immediately after the occurrence.
3. That Officer Marvin Morris, while investigating said occurrence `considered the possibility of asking for a blood test' for alcohol as ...