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Jumer v. Henneberry

OPINION FILED JULY 6, 1978.

JAMES F. JUMER, PLAINTIFF-APPELLANT,

v.

DAVID J. HENNEBERRY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Peoria County; the Hon. ALBERT PUCCI, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiff, James Jumer, commenced this action in the circuit court of Peoria County seeking to recover damages from defendant, David Henneberry, as a consequence of defendant's operation of his car. After a jury trial a verdict in favor of the plaintiff was returned for $5,000. Judgment was entered on the verdict, post-trial motions were denied and this appeal follows.

On July 30, 1973, plaintiff was a passenger in the back seat of a car operated by defendant. Robert Schmitt was also a passenger occupying the right side of the front seat. The car was going east on I-74 through Peoria and at about the Knoxville interchange the Henneberry car sideswiped another car also going east on I-74, the latter car being operated by Lois Muchovic. However, the Henneberry car did not stop, but proceeded east on I-74 for approximately one mile where at a point near the Monroe overpass it rear-ended another car. Both cars left the road and the Henneberry car flipped over and came to rest on its top on the embankment. As a result of this collision Jumer's head struck the rear part of the front seat and caused injuries to his face.

The jury returned a verdict of $5,000 in favor of the plaintiff and against the defendant. Before judgment was entered on the verdict, defendant moved that the jury award be credited with the medical payments which had already been advanced by the defendant to the plaintiff in the amount of $4,571.89. The plaintiff made no objection to such allowance so the verdict was reduced by the amount of such medical payments and judgment was then entered in the amount of $428.11.

On this appeal the plaintiff argues the trial court erred in denying his motion for a new trial because one, the award of damages is inadequate and contrary to the evidence and two, plaintiff was deprived of a fair trial because of trial errors which occurred during the trial. We affirm.

In support of his assertion the trial court denied him a fair trial, the plaintiff argues one, the court erred in refusing to permit witnesses to testify to the speed of the defendant's car; two, the court erred in permitting evidence of drinking to be introduced in the trial; three, the court erred in giving instructions tendered by defendant.

With respect to the plaintiff's contention the trial court improperly declined to permit evidence of the speed of defendant's vehicle, it appears that three witnesses were questioned about speed. They were Lois Muchovic, the driver of the car which was sideswiped, Harold Freeland, who was on the Knoxville entrance ramp and Robert Schmitt, the other passenger in defendant's car. During the examination of these witnesses, plaintiff's counsel made numerous efforts both to lay a foundation for the speed opinion testimony and to elicit opinions of speed of the defendant's car. The court sustained most of the defendant's objections based generally on improper foundation. However, in our opinion the questions were proper and the objections, although sustained, were addressed to the quality of the evidence rather than to the propriety of the question. For example, the operator of the car which was sideswiped by defendant's car concluded that she had only a fleeting glance of the car as and after it passed her proceeding on down the highway. That her estimate of speed might have been adversely affected by the short duration of time during which she observed the car is a matter of argument, but should not invalidate her opinion as a matter of law.

• 1 In O'Brien v. Walker, 49 Ill. App.3d 940, 949, 364 N.E.2d 533, 539, the court observed:

"Speed is generally recognized as a subject about which a layman may express an opinion. [Citation.] A witness is competent to testify as to the rate of speed of a moving object if he is of ordinary intelligence and possessed an opportunity for observation. [Citation.] The duration of a witness's period of observation [citation] or the fact that the witness does not drive but only observes as a bystander [citation] goes to the weight rather than the admissibility of the evidence."

Within the foregoing rule, we believe the questions were sufficient to establish the competency of the witnesses to express opinions of speed and the trial court was not justified either in rejecting the foundation questions or opinions based thereon. We do not believe it would serve any useful purpose to discuss the testimony of each witness relating to speed because in our opinion the errors are harmless. The jury by its verdict established the liability of the defendant, the only issue to which speed was relevant and consequently, we do not see how the defendant was unfairly or prejudicially affected by the court's rulings.

Next plaintiff argues the defendant by improper cross-examination of the plaintiff interjected into the trial evidence of drinking and of the presence of alcohol.

Prior to the commencement of the trial, the plaintiff filed his motion in limine requesting an order excluding evidence of drinking by or intoxication of either the plaintiff or defendant. The trial court denied the motion and in our opinion did so properly. At this stage of the proceedings the pleadings included a count seeking damages based on the alleged intoxication of the defendant. During the voir dire the trial judge read the charges of the complaint against the defendant, including the charge that he was driving while under the influence of an intoxicating beverage. The plaintiff had not withdrawn this allegation from his complaint and had made no effort to do so at the time of his testimony.

During the plaintiff's testimony in chief, he was questioned by his counsel only about the events which occurred after the three persons were in the car. On cross-examination defense counsel, over plaintiff's objection, elicited testimony about the purchase of alcoholic beverages by the plaintiff and the consumption of such beverages by all three. Plaintiff's counsel objected that such questions were beyond the scope of direct examination and therefore improper. The objections were overruled and defense counsel was permitted to elicit testimony concerning the purchase and consumption of alcohol. The count of the complaint charging wilful and wanton misconduct of the defendant because of his operation of the car while under the influence of intoxicating beverages continued in the case until the conference on jury instructions at which time the count was dismissed on defendant's motion without objection because of the absence of any evidence of the intoxication of the defendant.

• 2 We believe that latitude may be appropriately permitted in the cross-examination of a plaintiff. (D.I. Felsenthal Co. v. Northern Assurance Co., 284 Ill. 343, 120 N.E. 268.) Based on the posture of the case at the time of the testimony, cross-examination relating to the purchase and consumption of alcohol was both material and relevant. The issue of the defendant's alleged intoxication was introduced into the case by the plaintiff by his pleadings. The plaintiff in attempting to establish his own due care and freedom from culpable conduct where intoxication of the ...


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