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Albee v. Emrath

OPINION FILED JUNE 21, 1977.

JOHN ALBEE, A MINOR, BY WINIFRED ALBEE, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

MARTIN L. EMRATH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY STARK, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1977.

This is a personal injury action brought by plaintiff, John Albee, a minor, by his mother, Winifred Albee, against defendant, Martin Emrath, to recover damages allegedly resulting from defendant's negligence as the driver of an automobile. Defendant appeals from a judgment entered upon a jury verdict in favor of plaintiff in the amount of $12,500. On appeal he contends that the trial court erred in permitting plaintiff's counsel on cross-examination to elicit an investigating police officer's opinion as to the speed of plaintiff's motorcycle.

We affirm.

The accident occurred on July 10, 1970, at approximately 5:45 p.m. at the intersection of Northwest Highway and Niagara in Chicago, Illinois. Niagara is an east/west street and has a traffic stop sign where it intersects with Northwest Highway. The intersection herein involved is a "T" intersection, as Niagara only runs east of Northwest Highway. At the time of the accident the street pavement was dry and the flow of traffic was moderate to heavy. Plaintiff, operating a motorcycle, was proceeding north on Northwest Highway, and defendant, driving an automobile in a southerly direction on Northwest Highway, was making a left turn to enter Niagara enroute to his part-time job at Jewel. The Jewel food store and parking lot are located on the northeast corner of the intersection.

Plaintiff testifed that he dropped a passenger off about three-quarters of a block from the scene of the accident. He proceeded north on Northwest Highway, traveling no faster than 30 miles per hour in the lane next to the center of the street. While proceeding north, plaintiff first became aware of defendant's car when he was 50 to 60 feet from the point of impact. The car was beginning to turn left across Northwest Highway and into an easterly direction on Niagara. There was no traffic in the north lane at the accident intersection, but there was a westbound vehicle stopped on Niagara at the intersection. When he was approximately 40 feet from defendant's car, plaintiff applied his brakes — his foot brake followed by his hand brake. At that time defendant's car was pointed southeast and had come to a full stop in the northbound lane of Northwest Highway. The motorcycle then skidded, and the collision occurred about nine feet east of the Northwest Highway center line. The impact caused personal injury to plaintiff and severe damage to plaintiff's motorcycle.

Defendant testified that he stopped at the corner of Niagara and Northwest Highway to make a left turn to proceed easterly on Niagara. His car was facing southeast and was completely in the southbound lane of Northwest Highway. After the northbound traffic passed the intersection, defendant proceeded across the center line of Northwest Highway but stopped when he saw a motorcycle passing to the right of a northbound car approximately 150 feet from defendant's car. Defendant did not know how fast plaintiff was traveling. He further asserted there had been no damage to the front of his car prior to this collision.

Two eyewitnesses testified. Robert Newberg, defendant's employer, was seated in his westbound car on Niagara at the Northwest Highway/Niagara intersection where he had stopped in observance of the stop sign. He saw defendant stopped one and one-half to two feet over the yellow center line of Northwest Highway in an attempt to turn left. According to this eyewitness, plaintiff's motorcycle was traveling at least 20 to 25 miles per hour just before and at the time of impact.

Gary Williamsen, a Jewel employee with plaintiff, was collecting shopping carts in the Jewel parking lot and stood 100 to 200 feet from Northwest Highway and 25 feet from Niagara at the time of the collision. He estimated the front end of defendant's car to be "a foot and a half to two feet over the yellow line" at the time of the collision. According to this eyewitness, plaintiff was traveling 40 to 65 miles per hour prior to the collision. The witness estimated the impact speed to be 30 to 45 miles per hour.

Roger Zemba was driving north on Northwest Highway when he observed plaintiff pass him on his right. He estimated plaintiff's speed to be 35 to 40 miles per hour. While this witness did not observe the collision, he did see the vehicles immediately after their impact and estimated defendant's car to be one and one-half to two feet over the center line.

The investigating police officer was called as a defense witness. On direct examination he testified that he had been a police officer for 30 years. On assignment he investigated this collision and filed a report. He saw damage to the front portion of the driver's side of the car and to the front end of the motorcycle. In addition to his observations of the vehicles, the officer measured a skid mark that appeared to have been made by the motorcycle. The skid mark was 44 feet in length and terminated at a point where the officer discovered debris. The officer estimated this point to be the point of impact.

On cross-examination plaintiff's counsel elicited testimony to the effect that the police officer had some training and some experience in investigating accidents. According to the officer the amount and position of debris and the position and length of skid marks were all significant in determining the speed of the vehicles. The officer then gave his opinion that the 44-foot skid mark indicated "excessive speed." Plaintiff's counsel attempted to impeach the officer from a "book" published by the "Traffic Institute of Northwestern University." While the officer had never seen nor used the manual, he did admit that this was one of the manuals used by the Chicago Police Department. No authority was established to lay a foundation for the use of the manual. Moreover, the specific chart plaintiff's counsel desired to use was valid only as to automobiles and not as to motorcycles. Defense counsel's objection to the use of the manual, however, was overruled.

Plaintiff's counsel used the book in an effort to discredit testimony plaintiff's counsel had elicited from the officer that plaintiff was traveling at an excessive speed. Plaintiff's speed was then computed with the aid of the nomograph and determined to be between 24 and 32 miles per hour. The officer, however, testified that in addition to the skid marks, numerous variables such as the weight, the specific equipment, and the tires of the vehicle must be considered in computing the vehicle's speed.

On redirect examination, defense counsel elicited testimony that the manual applied to automobiles and not to motorcycles. The officer suggested in his testimony that the question of whether plaintiff was traveling at an ...


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