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Clarquist v. Kirschenman

OPINION FILED DECEMBER 14, 1977.

LYNN S. CLARQUIST, PLAINTIFF-APPELLEE,

v.

CLARENCE KIRSCHENMAN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Rock Island County; the Hon. PAUL E. RINK, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 11, 1978.

This is an appeal by the defendant McCarthy Improvement Company, Inc., from a judgment and an award of damages in the sum of $260,000 to the plaintiff, Lynn S. Clarquist, after trial by jury in the Circuit Court of Rock Island County.

On August 16, 1974, the plaintiff sustained injuries when he was struck by a dump truck which was being used on a highway construction project in Rock Island County. The project involved the widening and resurfacing of nine miles of Illinois Route 92. The highway runs east and west, consists of two lanes and carries traffic in both directions.

The plaintiff had been on the project site since mid-July of 1974 in the capacity of a State inspector. The duties of the plaintiff consisted of obtaining tickets from the truck drivers working on the project and he further checked the temperature and thickness of the asphalt being applied.

The widening of the highway involved the preparation of an area adjacent to the existing highway and the application of layers of asphalt on this area. The asphalt was transported to the job site in trucks after which it was dumped into a spreader. The spreader then applied the asphalt to the ground and it was thereafter compacted with a roller. Water trucks dispensed water on the rollers in order to keep the asphalt from sticking.

The widening of the highway and the application of the asphalt was done in sections. On the day in question a section 1,580 feet in length was being widened. The various vehicles involved would proceed forward over an area, and then back up to what was referred to as the start line before applying the next layer of asphalt.

While this procedure of applying the asphalt was being performed the plaintiff wanted to get to the spreader, so he started walking west on the south shoulder of the road. At some undetermined point he stepped on to the pavement and continued walking west in the eastbound lane of traffic. This lane was closed to traffic as the result of the work being done and flagmen were directing all traffic into the westbound lane.

Clarence Kirschenman (named as a defendant in the complaint filed by the plaintiff but never served with summons) was backing a dump truck through the construction zone at a speed of approximately 3 to 6 miles per hour. The vehicle operated by Kirschenman was equipped with outside mirrors and a back up warning bell.

The plaintiff did not heed the warnings of either the bell or that of a passing motorist and was struck by the truck and injured.

We have set forth but a brief summarization of facts which resulted in plaintiff's injury and ensuing action for damages. A more detailed recitation will be set forth as they become pertinent to a determination of this appeal.

The defendant raises several issues which he contends warrant a reversal of the judgment of the trial court. We first direct our attention to the defendant's contention that it was deprived of a fair trial by the conduct of counsel for the plaintiff.

The first allegation of misconduct on the part of counsel of the plaintiff pertains to a motion in limine. Kirschenman, the driver of the truck which injured the plaintiff, had left the employ of the defendant shortly after the accident. The defendant in an effort to avoid any adverse inference which might arise from the fact that its former employee, Kirschenman, had left their employment quite soon after the accident filed a motion in limine prior to trial which covered this matter. The motion was allowed on August 23, 1976. From the record it is clear that counsel for the plaintiff was aware of the fact that questions and answers on the subject of Kirschenman leaving the defendant's employ were forbidden, however, during the course of the trial the following colloquy and events transpired:

"Counsel for Plaintiff: Are you still in the employ of McCarthy Improvement Company?

Witness Kirschenman: No sir. Not right now.

Counsel for Plaintiff: When did you leave their employ?

Counsel for Defendant: Objection. I would like to be heard outside the presence ...


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