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Kassela v. Stonitsch

OPINION FILED FEBRUARY 15, 1978.

FRANK KASSELA, PLAINTIFF-APPELLANT,

v.

RICHARD STONITSCH ET AL., D/B/A L & R CONTRACTORS, DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD CAREY, JR., Judge, presiding.

MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

This case involves a collision between two vehicles on Caton Farm Road in Will County, a road running in an east-west direction. The collision occurred during daylight and in dry, clear weather. Caton Farm Road had a blacktop or tar pitch with no painted line dividing the eastbound and west-bound lanes. The speed limit was 35 miles per hour. Plaintiff and defendant were the only eyewitnesses to the collision.

Plaintiff was driving west-bound and defendant in the opposite direction. When their vehicles collided, defendant was just over the crest of a hill 19 feet 4 inches above the bottom of the hill and plaintiff had almost reached the crest of the same hill. Proceeding up the hill from either side, it was not possible to see a vehicle coming from the other side. When driving up the west side of the hill, as defendant was doing, a driver is forced to move his vehicle continually to the left because the road narrows toward the center as it ascends the hill.

Plaintiff testified he knew he was on the proper side of the roadway as he drove up the hill because he consistently kept his vehicle within a foot of the north shoulder. Defendant testified that as he ascended the hill he could not see over the crest. When he first saw plaintiff's vehicle, defendant attempted to steer to the right to clear plaintiff's vehicle. Two or three seconds elapsed from the time defendant saw plaintiff's vehicle until the collision. Defendant acknowledged that he was not sure that at the moment of impact he was totally within the eastbound lane of the road. Plaintiff testified he did not see defendant's vehicle until a moment or two before the accident, and defendant appeared to be driving down the center of the road about 2 1/2 feet over the center line. The left front foot and one-half of each vehicle made contact.

Defendant testified that both vehicles were traveling 30 to 32 miles per hour. Plaintiff's testimony was that defendant appeared to "be going twice the speed of my vehicle, at least around 60 miles per hour."

Plaintiff sued to recover for personal injuries he claimed to have suffered. The case was tried before a jury, which found for the defendant, as well as for his co-defendants, his brother and business partner, and the partnership which used the vehicle driven by defendant in its business. In answer to a special interrogatory submitted by defendant, the jury specifically found that plaintiff had been guilty of contributory negligence.

Robert Leroy, a police officer for 3 1/2 years, arrived at the scene a few minutes after the accident, before either vehicle was moved. Prior to observing these vehicles, he had worked on about 100 accident cases, and received 6 weeks of training in accident investigation or reconstruction at a police training institute. Leroy was called as a witness by defendant. When asked over plaintiff's objection whether he was able to determine by looking at the debris where the impact took place, Leroy responded, "Right in the middle of the roadway." The court immediately instructed the jury that the answer was not responsive and was incompetent testimony. Leroy's further testimony related to his observations of the position of the debris in the roadway.

There was testimony at the trial regarding plaintiff's use of seat belts. A physician specializing in orthopedics was called by plaintiff to testify concerning the extent of plaintiff's injuries. On cross-examination, he testified:

"Q. Do you have an opinion as to whether or not a seat belt or the use of a seat belt would have prevented the type of injury Mr. Kassela had?

A. I think seat belts help, yes."

The next morning, plaintiff's counsel moved to strike this testimony and to prohibit defendant from again injecting the subject of seat belts into the trial. This motion was denied.

Plaintiff later was asked on cross-examination, over his counsel's objection, if his vehicle was equipped with seat belts and if he had been wearing them when the collision occurred. Plaintiff argued that seat belt testimony was inadmissible except in mitigation of damages, and then only if a proper foundation was laid by expert testimony. The plaintiff's motion for a mistrial because of the reference to seat belts was denied, and his objection to the seat belt question was overruled. Upon resumption of the cross-examination, plaintiff testified that he did not know whether he was wearing his seat belt at the time of the accident.

Both parties tendered instructions about the use of seat belts, but the trial judge refused to give any instruction on this subject. He reasoned that his notes showed only one question relating to seat belts, and said he saw no reason for expanding the issue.

Defendant called Donald S. Berry, a professor of civil engineering at Northwestern University, and sought to have him testify, as an expert witness, about the relative speeds of the vehicles as determined by their weights and locations and by the location of the debris after the collision. The court sustained objections to Professor Berry's testimony, allowing only the portion relating to his qualifications and the formula he used to determine the amount of kinetic energy a vehicle would have. Over plaintiff's objection, defendant's counsel asked Professor Berry a series of questions designed to elicit the witness' opinion on the speed of the vehicles prior to the impact. Plaintiff claimed at trial, as well as before this court, that he was prejudiced by defendant's continued efforts to ...


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