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Kessner v. Mcdonald





APPEAL from the Circuit Court of Du Page County; the Hon. EDWIN L. DOUGLAS, Judge, presiding.


Rehearing denied April 7, 1977.

The plaintiff herein, a pedestrian, brought an action for personal injury against the defendant. In a jury trial the verdict was rendered for the defendant and the plaintiff appeals.

The plaintiff has raised four issues in this appeal. The first and second contention of the plaintiff is that the verdict is against the manifest weight of the evidence. The third issue presented is that the introduction of the testimony as to the plaintiff's intoxication and the giving of an instruction thereon was error. Lastly, plaintiff argues that defense counsel's closing arguments contained improper comments that were prejudicial and denied the plaintiff a fair trial.

On the night of September 15, 1973, the plaintiff, her husband, and her brother, Ronnie Schultz, drove from Chicago to the Aurora dam area to go fishing. They arrived at the fishing site about 10:30 p.m. They were unable to buy any bait and it was drizzling. They became disgusted and started to drive back home by way of Roosevelt Road, a four-lane, eastwest road. Two or three blocks west of the intersection of Winfield Road and Roosevelt Road the car ran out of gas. A Winfield police officer stopped and told them that there was a gas station 8 miles up the road but that he doubted that it would be open. He offered them no assistance. They started walking east on Roosevelt Road and reached Winfield Road. At this point they crossed to the south side of Roosevelt Road and continued to walk in an easterly direction, single file. According to the plaintiff's testimony her brother was walking first, she was in the middle and her husband was walking last. The plaintiff then testified that she decided to cross over to the north side of Roosevelt Road and started walking westerly on the shoulder. She further testified that she held up the empty gas can which she had been given by her brother or her husband, and attempted to flag down a car that was driving westerly. She then testified that her husband shouted at her three times, "Watch out for the car," she turned around, saw the lights of the defendant's car and was struck while she was on the north shoulder of Roosevelt Road. On the other hand, the defendant testified that she was driving westerly on Roosevelt Road at approximately 1 o'clock in the morning in the northerly westbound lane at a speed of about 45 mph. She first saw the plaintiff to the left of the center line of the westbound lanes of Roosevelt Road and that the plaintiff dashed across the northerly westbound lane in front of her car. Defendant testified that she swerved to the left but that she struck the plaintiff. The defendant's passenger also testified that the defendant swerved the car to the left and applied her brakes just before the plaintiff was struck. The police officer investigating the accident testified that there were 65' of skid marks in the northerly, westbound lane east of where the plaintiff was struck and that, in his opinion, this would indicate that the defendant was traveling at a speed of between 40-50 mph. Plaintiff's exhibit 1 indicates that the speed limit was 50 mph in the area in question. The plaintiff was taken to the Central Du Page Hospital where she was examined and treated by Dr. Jabaay about 3 in the morning.

• 1 In support of plaintiff's contention that the verdict is against the manifest weight of the evidence, the plaintiff contends that the defendant failed to keep a proper lookout in this semirural area at 1 o'clock in the morning and that the issue squarely presented is where the plaintiff was at the time she was struck. Plaintiff's evidence places her on the shoulder while the defendant testified that the plaintiff was crossing the highway from south to north when the defendant first saw plaintiff. Plaintiff contends that the trial testimony of the defendant placed the plaintiff to the left of the center of defendant's car as plaintiff was crossing the highway, whereas in defendant's deposition she stated that the plaintiff was struck between the center and the right part of the car. It is interesting to note the defendant did, in fact, testify that when she saw the plaintiff she swerved to the left. It is, of course, conceivable that the plaintiff could have been seen to the left and yet the actual impact could have occurred between the center and the right portion of defendant's car. In any event, whether the plaintiff was struck when she was on the shoulder, as she contends, or whether she was struck when she was running across the road, as the defendant testified, is a matter of fact for the jury to determine. The cases in Illinois are legion that it is the function of the jury to determine the preponderance of the evidence, and a reviewing court will only reverse if the jury's determination is against the manifest weight of the evidence. (See, e.g., Lau v. West Towns Bus Co. (1959), 16 Ill.2d 442, 158 N.E.2d 63.) The courts> of Illinois have also repeatedly held that the credibility of the witnesses is a factual question to be determined by the jury in a jury trial. (See, e.g., Brown v. Zimmerman (1960), 18 Ill.2d 94, 163 N.E.2d 518.) In addition, in the case of Wroclawski v. Waszczyk (1976), 35 Ill. App.3d 408, 412, 342 N.E.2d 261, 265, the court there stated:

"Moreover, for a judgment to be against the manifest weight of the evidence, the appellant must present evidence that is so strong and convincing so as to completely overcome the evidence and presumptions, if any, existing in the appellee's favor. [Citations.]"

In the case before us we will not substitute our judgment for that of the jury as to the factual determination of where the plaintiff was at the time she was struck. There is sufficient evidence which supports the jury's finding and plaintiff has failed to meet her burden. The plaintiff also testified that she did not see defendant's car approaching or the lights thereof because she was looking down at the ground and that there was a bush sticking out that obscured her view of the approaching car. This too was a matter for the determination of the jury, and we will not disturb their findings in this regard.

We turn next to the contention of the defendant that the admission of testimony as to plaintiff's sobriety or intoxication and the subsequent instruction on plaintiff's intoxication relative to contributory negligence constituted reversible error.

At the outset of the trial the plaintiff's attorney made a motion in limine relative to the admissibility of evidence of plaintiff's condition of sobriety on the night in question. A preliminary hearing was held on this motion outside the presence of the jury, and the motion in limine was granted. After Dr. Jabaay had testified, the defense counsel made an offer of proof as to this witness relative to the sobriety of the plaintiff. The trial court reversed its prior ruling, set aside the motion in limine and allowed the doctor to testify as to the intoxication of the plaintiff. Dr. Jabaay then testified he advised the plaintiff that he was her doctor and was going to take care of her and that he had to know how much she had had to drink. She replied that she had had eight beers. The doctor also testified that he detected the odor of alcohol on her breath and that her speech was slurred. The doctor further testified that in his opinion the plaintiff was drunk or intoxicated.

The police officer who was at the scene of the accident also testified that in his opinion the plaintiff was intoxicated.

The plaintiff testified that she had one beer at her apartment before they left Chicago at about 7 in the evening and that she had 1 1/2 beers at the dam site prior to their leaving there about 11 that evening.

In support of her contention of error in the admission of testimony and the instruction on intoxication, the plaintiff has cited in some detail the case of Shore v. Turman (1965), 63 Ill. App.2d 315, 210 N.E.2d 232. In that opinion the court said that plaintiff's position, simply stated, is that it is error to give instructions as to intoxication where there is no evidence, opinion or otherwise to support such instruction. The court further stated, "[w]here there is no evidence of intoxication of the plaintiff, the giving of an instruction dealing with contributory negligence on the ground of intoxication is reversible error." (63 Ill. App.2d 315, 321, 210 N.E.2d 232, 235.) We do not find Shore v. Turman to be factually applicable to the case before us.

It is true that mere consumption of intoxicating beverages does not establish intoxication and there must be proof of facts tending to show such intoxication. (Kitten v. Stodden (1966), 76 Ill. App.2d 177, 221 N.E.2d 511; Coleman v. Williams (1976), 42 Ill. App.3d 612, 356 N.E.2d 394.) Plaintiff contends that the only evidence which purportedly characterized plaintiff's condition as intoxicated is that of Dr. Jabaay during cross-examination. Plaintiff summarizes the doctor's testimony as stating that she told him she had eight beers, that she had an odor of alcohol on her breath and that she had some thickness of tongue when speaking. However, the doctor went further and stated at least twice that in his ...

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