APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 13, 1978.
The defendant-counterplaintiff appeals from an adverse verdict in an automobile accident case. The issues before this court are (1) whether the trial court erred in giving the Prim instruction to the jury before it retired and if so whether the error warrants reversal although no prejudice is alleged and (2) whether the jury determination was against the manifest weight of the evidence where the only material witnesses were the investigating officer and two reconstruction experts. We find no error and affirm.
The accident in question occurred on a lonely road in an unincorporated area of Cook County at about 1:30 a.m. on September 12, 1972. The street in question is a two-lane bituminous highway running east and west. At the time of the accident the defendant's car was traveling east and that of the plaintiff's decedent, Trauscht, was traveling west. The major question in this case was which car crossed the center line.
Because Trauscht had died, the defendant Gunkel was barred by the Dead Man's Act (Ill. Rev. Stat. 1975, ch. 51, par. 2), from testifying. There was one passenger (Thompson) in Trauscht's car but he testified that he had fallen asleep before the accident and remembered nothing about the accident. Thompson testified that he had worked from 12 noon that day until 12 midnight at his gas station. Trauscht, on the other hand, who had been an employee of his, had worked from 3 in the afternoon until midnight. Afterwards they went in Trauscht's car to a restaurant where they ate. They then drove towards a stable located at 159th and Wolf Road. It was on the way there that the accident occurred.
Police officer Harrison, one of the investigating officers, then testified for the plaintiff. At the time of the trial he had been a sheriff's police officer for about 6 years and had investigated about 500 accidents. He arrived at the scene of the accident at about 1:35 a.m. At that time there was no rain and it was clear. Several other official automobiles also arrived at the scene and the light from their headlights, which were left on, enabled him to see the roadway between the two vehicles. At this time he remained at the scene for about one-half hour and walked across the road several times. There was debris from the cars, dirt which had been knocked off upon impact and parts of trim scattered through the roadway down the center line; the main deposit of debris started near Trauscht's car. There was also sediment along the center of the highway. He saw no skid marks. The only oil accumulation which he observed was that which was emitting from the bottom of Trauscht's car which was off on the north side of the road. (Gunkel's car ended up off on the south side of the road.) He found no other accumulation of oil in the eastbound or westbound lanes, and the roadway was sufficiently lighted so that he could have seen any accumulation if there had been any. He did not walk in any oil. After leaving the scene to go to the hospital, he returned. By that time it had started to mist and rain. He had in his 6 years of investigation seen oil on a wet pavement. He did not see any condition of oil and water in the eastbound lane.
The police photographs of the accident scene, which had been taken after ambulance and rescue teams had left, were then introduced into evidence. On cross-examination Harrison agreed that one of the photographs showed a headlight or mirror in the eastbound lane although he did not remember seeing any. He also agreed that the photograph showed some type of tire marks or tire scrapings which appeared to run diagonally across the eastbound lane pointing towards Trauscht's car although he did not remember seeing them at the time. They also showed two scratch marks in that lane which he did not recall seeing. He did not agree with the defendant's contention that the black mark in the picture was an oil mark. He stated it was probably dirt on top of the tar with which the street is patched. He also stated that he did not remember seeing the oil spatter which appeared in the defendant's pictures, taken several days later, on the road when he investigated. He also stated that the reason he had not shown any gravel across the road in a diagram he had made at the time was because it was not there at that time; it was thrown on the road by the other vehicles. Finally, he testified that he did not know on which side of the road the impact occurred.
Willard Alroth testified as a reconstruction expert for the plaintiff. He first visited the scene 6 days after the accident. He had the police photographs of the accident with him at the time which he examined on the scene. To a general extent, he attempted to correlate the photographs he took with the police photographs. He testified that at the scene he observed a large and rather dispersed area of gouging in the westbound lane and some relatively deep gouge marks 2 or 3 feet north of the center line. There was also a fluid stain closer to the north edge of the road. This stain was just west of some of the gouge marks. This stain appeared in the police photographs. He also found a fluid stain in the eastbound lane but this stain did not appear in the police photographs. The same is true of a rubber tire scuff mark leading from the center line northwest. Besides the oil stain, he also observed pavement gouges in the eastbound lane. There were also furrows made by both cars as they went off the road. Alroth also inspected both automobiles. The decedent's automobile was a 1964 Mercury Montclair, 4-door sedan which weighed between 4300-4500 pounds. The defendant's was a 1968 Oldsmobile Cutlass, 2-door hardtop which could have weighed between 3600-3800 pounds. The entire front end of the Oldsmobile was involved in the direct contact of the collision. Even the right front fender was pulled about 34 inches to the left. The left front frame was bent down and would have been dragging on the ground after the accident. There was little actual side penetration. The main contact on the Mercury was "a limit of main force beginning at about 15 inches from the left side." It extended back along the left side. There was direct contact damage all the way back into the rear fender area. By the nature of the left side collapse the right side was twisted around toward the left. The left side frame was down on the ground.
Alroth did not check to see if any oil vessels of either vehicle had been fractured. Taking measurements, he determined that the front of the Mercury came to rest about 3 feet north of the roadway and the rear about 10-15 feet the car facing southwest. The Oldsmobile's right front was about 20 feet from the south edge of the road and the right rear was about 25 feet. It was angled somewhat to the northwest facing west. The distance between the vehicles was about 220 feet. He concluded from all his observations that when the collision occurred the decedent's car was traveling straight in the westbound lane about 3-4 feet from the center lane and that the defendant's car was angled slightly to the northeast and straddling the center line, the two vehicles colliding at a point relatively near and related to the large area of gouge marks in the westbound lane near the Mercury's final resting position. The Oldsmobile had the greater momentum at impact. After impact the Oldsmobile moved in a southeasterly direction rotating and sliding off the road; in effect it spun alongside the Mercury and finally spun around and moved backwards. The Mercury rotated counterclockwise about 45 degrees and moved generally in a 45-degree angle off onto the north shoulder of the roadway.
On cross-examination, the witness conceded that if the fluid stains in the eastbound lane were caused by the accident, this would be another factor that would have to be considered and in correlation with other events it might cause him to change his opinion.
James Baker testified as reconstruction expert for the defendant. He first visited the scene on September 23, 1972. He did not have the police photographs with him at the time nor had he seen them before his visit. (He did eventually obtain some police photographs but there was no testimony as to whether he used them in reaching his conclusions.) He observed a gouge about a foot and one half long on the center line, a scratch in the eastbound lane several feet long and two heavy gouges in that lane in the end of an oil spatter. He was surprised at finding the oil spatter so dark 9 days (actually 11 days) after the accident. The two gouges in the oil spatter could have been made by parts of the transmission or the crank case. There was also a tire scuff which went across the lane toward the final position of the Mercury. He also observed the furrows leading to the Oldsmobile's final position.
After viewing the scene, the witness inspected the two automobiles. The left side of the Mercury showed a remarkable degree of force from the front almost to the rear. The deepest penetration was just behind the left front wheel. This indicated the direction of force was from the front to the rear and in from the side. The maximum engagement on the Oldsmobile was the front of the left wheel. The thrust against it did not come from straight ahead but at an angle. He observed that the transmission case on the Mercury was not hit but that that on the Oldsmobile was broken down.
He concluded that the first contact between the vehicles was approximately in the center of the eastbound lane, 4 or 5 feet west of the heavy gouges in the oil stained area. During engagement, the underside of the transmission and engine were broken open to the point where parts were missing. The force of the Oldsmobile on the road would have left heavy gouges in the surface of the road and the oil in the transmission case and the engine would have been forcibly dumped on the road surface at this point. This was his main reason for believing that the collision took place at that point. Furthermore, the general position of the vehicles to each side and the final position confirmed this. As the Oldsmobile after the collision moved toward the right side it would have kicked up a lot of roadside gravel and thrown it into the road. It then rotated into its final position off of the road.
The witness further concluded that the accident could not have occurred in the westbound lane. For the Oldsmobile to have collided at that angle, it would have had to have been moving at an extremely high speed so that it stopped the Mercury and still went 200 feet. If it ...