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O'brien v. Walker





APPEAL from the Circuit Court of Cook County; the Hon WILBERT F. CROWLEY, Judge, presiding.


Plaintiff brought this action to recover damages for personal injuries sustained in the collision of the automobile he was driving and a tractor-trailer unit driven by defendant, Stephen Walker, who was hauling freight for defendant, Distributors Service Company. The jury returned a verdict in favor of defendants and by special interrogatory found plaintiff guilty of contributory negligence. Plaintiff appeals from the judgment entered on the verdict and presents the following issues for review: (1) whether he was denied a fair trial by the trial court's refusal to order the production of a party defendant at trial; and (2) whether certain evidentiary rulings of the trial court were prejudicial error.

The record discloses that plaintiff obtained an order for the discovery deposition of Walker, who was then a California resident, to be taken before the trial of the case — which was then set for May 15, 1975. The case, however, was continued to June 16 "above the black line" — a designation in the trial court for cases awaiting trial which are called daily until assigned to a judge for trial. On June 23, while the case was still "above the black line," plaintiff served a Rule 237(b) notice (Ill. Rev. Stat. 1975, ch. 110A, par. 237(b)), requiring Walker's appearance at trial so that he could be cross-examined. Walker than came to Chicago on June 24 for the trial and for his discovery deposition, which was taken by plaintiff on June 25. On June 26, the case was assigned to a judge for trial; but, through no fault of any party, it was returned to the assignment judge where — because no trial judge was available — it was continued to July 2.

On June 27, Walker's evidence deposition was taken by agreement of the parties, following which he returned to California. However, plaintiff states that at this deposition his attorney served Walker with a subpoena to appear before Judge Butler on July 2, at 10 a.m. When the case was again assigned to trial on July 7, Walker did not appear. An oral request was then made by plaintiff that Walker be ordered to return to testify which, after a hearing, was denied.

During the trial, plaintiff's attorney put Walker's deposition into evidence and read it to the jury. In it, Walker testified that Pulaski had two northbound lanes and that he was traveling north in the lane next to the center line as he approached Augusta, an east-west street. In the block south of that street, his speed was 15-20 m.p.h. and, when he was 50-100 feet south of Augusta, he observed that the traffic signal was green in his favor, and east and westbound traffic on Augusta was stopped. He said also that the traffic signal did not change before the collision with plaintiff's westbound car, which occurred in the northeast quadrant of the intersection. Plaintiff then testified that he proceeded into the intersection with the green light at a speed of 20-25 m.p.h., but he was unable to remember anything from the time he entered the intersection until he regained consciousness in a hospital three months later.

Two eyewitnesses gave conflicting testimony. Carl Wassinger, a witness for plaintiff, observed the collision from the front window of his apartment located three doors north of Augusta on Pulaski and testified that Walker's vehicle entered the intersection on the red light at a speed of about 40 m.p.h. However, William Hillard, a witness for defendants, observed the collision from in front of his home located on the southwest corner of the intersection and testified that the tractor-trailer had the green light and that plaintiff's vehicle entered the intersection on the red light at a speed of 40-45 m.p.h.

It was also Walker's testimony that he removed his foot from the accelerator before entering the intersection but could not remember whether he applied the brakes prior or subsequent to seeing plaintiff's car; that his vehicle eventually stopped north of the intersection but he could not remember how far; and that plaintiff's car came to rest north of the intersection facing in a northerly direction with the two right wheels up on the curb.

George Martin, an investigating police officer, testified that after the collision both vehicles were facing north, with the automobile half on the sidewalk and the tractor-trailer about 100 feet north of Augusta. The officer said that Walker told him that he first saw the automobile when it was 10-15 feet away; that he was traveling at 20 m.p.h. at the time of the collision, after which his unit traveled about 30 feet; and that he then pulled it up further to get it out of the way of traffic. Martin also testified that the speed limit for both streets was 30 m.p.h. and that at the scene William Hillard gave him an account of the accident.


• 1 Defendants initially contend plaintiff is conclusively bound by the special interrogatory finding him guilty of contributory negligence because no motion to vacate was made in the trial court, and he argues that we should affirm the judgment pro forma, as no claim of error has been preserved for review. In support thereof, they refer us to Huff v. Illinois Central R.R. Co. (1972), 4 Ill. App.3d 113, 280 N.E.2d 256; Scott v. Hernon (1971), 3 Ill. App.3d 172, 278 N.E.2d 259; Quagliano v. Johnson (1968), 100 Ill. App.2d 444, 241 N.E.2d 187. However, we believe their reliance on those cases is unfounded. Where, as here, the attack on a judgment is based upon trial error, the special interrogatory would not be controlling, as it would if the judgment were attacked as being against the manifest weight of the evidence (see Blakely v. Johnson (1976), 37 Ill. App.3d 112, 116, 345 N.E.2d 814, 816); therefore, we will consider this matter on its merits.

We will first discuss plaintiff's contention that he was deprived of a fair trial by the failure of the trial court to order Walker's presence at trial. He argues that where a party litigant does not comply with a Rule 237(b) notice requesting his personal appearance at trial, a trial court is bound to order compliance and that prejudice results from the fact that a "cold flat transcript" of a deposition must be used in place of the personal appearance of a party. We do not accept this argument. The personal appearance of a party may be sought pursuant to Supreme Court Rule 237(b), which provides in pertinent part:

"The appearance at the trial of a party * * * may be required by serving the party with a notice designating the person who is required to appear. * * * If the party or person is a nonresident of the county, the court may order any terms and conditions in connection with his appearance at the trial that are just, including payment of his reasonable expenses." (Ill. Rev. Stat. 1975, ch. 110A, par. 237(b).)

The significant question raised is whether this rule is mandatory or directory in character and, if directory, whether prejudice occurred in its application to the case at bar. It appears that the resolution of this question depends upon the intent of the supreme court. (Ill. Rev. Stat. 1975, ch. 110, par. 4, ch. 110A, par. 2, ch. 131, par. 1.01; see also In re Armour (1974), 59 Ill.2d 102, 319 N.E.2d 496.) The decisions indicate that trial courts> are given considerable latitude in the application of court rules, and in this regard it has been said that:

"While rules of court are to be obeyed, `unswerving obedience' is not demanded where no material harm is done to any litigant. [Citation.] As far back as 1906 we have held, `Even when the court acts contrary to its rules, this will not be ground for reversal, unless it is apparent that injustice has been done.' [Citation.]" National Bank of Albany Park v. Newberg (1972), 7 Ill. App.3d ...

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