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Peterson v. Lou Bachrodt Chevrolet Co.

OPINION FILED JULY 12, 1978.

JAMES A. PETERSON, ADM'R OF THE ESTATE OF MARADEAN PETERSON, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

LOU BACHRODT CHEVROLET CO., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is the second appeal in this case. Following the decision of the supreme court in Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill.2d 17, 329 N.E.2d 785, this unusual automobile-pedestrian accident case was tried upon the theory that defendant, who had sold the used automobile involved in the accident less than three months before it occurred, was negligent in the inspection, repair and sale of the automobile with defective brakes. Judgment was entered upon the jury verdict in favor of defendant and against both plaintiffs. Plaintiffs appeal.

Plaintiffs contend that the trial court erred in the following respects: (1) allowing the investigating police officer to give his opinion as to the speed of the vehicle; (2) admitting into evidence the investigating police officer's diagram made from measurements which he took at the scene, and also an enlargement of portions of the officer's diagram which was used as the basis for expert testimony; (3) allowing expert testimony as to brakes and speed by a reconstruction witness; and (4) excluding testimony regarding the reasonable value of charitable medical services rendered to the injured plaintiff by the Shriner's Hospital for Crippled Children.

Defendant sold the 1965 Chevrolet in question to Cornelious Spradlin on June 11, 1971. At approximately 4 o'clock in the afternoon of September 3, 1971, John Elder was driving the vehicle north on 20th Street near Rockford. There is a slight hill as 20th Street approaches Samuelson and Samuelson is located at the bottom of that hill. The Elder vehicle was approaching a pickup truck which had apparently stopped at the intersection of 20th Street and Samuelson to make a left turn. At some time prior to reaching that intersection Elder applied the brakes on the vehicle. It swerved into the left-hand lane and back into the right-hand lane but the left rear of the Chevrolet hit the left front of a van being driven south on 20th Street. The Elder vehicle then went out of control and off the road on the right. It collided with an electric pole located on the southeast corner of 20th Street and Samuelson. During this collision the Elder vehicle also struck two children who were walking home from school and happened to be standing near the pole at that time. Maradean Peterson, who was 11 years old, was killed and Mark Peterson, who was 8 years old, received severe injuries resulting in the amputation of his left leg.

The speed and braking maneuvers of the Elder vehicle were vigorously disputed issues at the trial. In the area south of Samuelson the speed limit at the time of the accident was 65 mph but just north of Samuelson the speed limit was reduced to 40 mph. The trial court received the following eyewitness testimony on these issues. John Elder, the driver of the 1965 Chevrolet, testified in his evidence deposition which was read into the record that he was going approximately 35-45 mph before the accident and that he never exceeded 45 mph. He testified that he applied his brakes as he came over the crest of the hill, they didn't seem to work and he applied them harder just before going into the left lane. Bobby Spradlin, a passenger in the vehicle, testified that Elder was driving at 45-50 mph before the accident and testified that he told Elder to slow down shortly before the accident occurred. His testimony concerning braking was similar to that of Elder. Kristina Ramsey Spradlin, who was also a passenger in the car, testified that Elder was driving at 40-50 mph. She stated that Elder applied the brakes approximately 150 feet from the stopped pickup truck at the intersection and that was when they entered the left-hand lane. Portions of the testimony of all three of these witnesses was impeached by prior inconsistent statements. The driver of the van which the Elder vehicle hit could not say how fast the Elder vehicle was going or if its brakes were applied before it hit him. Mark Peterson, the injured plaintiff, also could not say how fast the automobile was going but did not think that it was being driven at a high rate of speed. Marvin Beard, who claimed that the Elder vehicle passed him shortly before the accident, testified that the vehicle was doing over 65 mph when it passed him but claimed never to have seen any brakelights on the car.

The court also received the following testimony on speed from noneyewitnesses. In response to a question by plaintiff, Charles Brackett, the wrecker operator who was called to remove the Elder vehicle from the scene, testified that in his opinion the car was doing approximately 25 mph at the time it hit the pole. Officer Gary Maitland of the Winnebago County sheriff's department arrived to investigate the accident shortly after it occurred. He talked to various people and made a number of measurements of skid marks and distances between various points and reduced these measurements to a diagram. In response to a question from defendant, the officer testified that based upon the skid marks he found and the conditions at the scene, he estimated that the Elder vehicle's speed before the accident was approximately 75-80 mph. Dr. Kenneth Packer testified as an expert witness with regard to the brakes on the 1965 Chevrolet. He was also allowed, based upon his examination of Officer Maitland's diagram and various photographs of the scene of the accident, to give his opinion as to the speed of the Elder vehicle at various points. He testified that before the accident occurred the vehicle was travelling at 73 mph, that it was travelling at 38 mph when it left the road, and that it was still travelling at 23 mph at the time it hit the pole. Dr. Packer's observations and estimates of speed were also written on a large diagram which was exhibited to the jury during his testimony.

Plaintiffs' contention on this appeal is that both Officer Maitland's and Dr. Packer's testimony was inadmissible reconstruction testimony. Defendant takes the position that it was not inadmissible reconstruction expert testimony and that, at any rate, plaintiff invited such testimony by the wrecker operator's testimony on speed. Defendant further argues that even if the testimony were improperly received, it was harmless error and merely cumulative of other properly received testimony concerning speed.

The area of reconstruction expert testimony has been discussed numerous times by the courts> of this State and the parties herein have respectively cited many of the cases which they deem most favorable to their position. One of the most recent opinions of the supreme court on reconstruction experts is found in McGrath v. Rohde (1972), 53 Ill.2d 56, 289 N.E.2d 619. In that case the court reaffirmed their earlier holding in Plank v. Holman (1970), 46 Ill.2d 465, 470-71, 264 N.E.2d 12, 15, which stated:

"However, reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available. Whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror."

• 1, 2 There appears to have been a certain amount of confusion in the cases as to why reconstruction testimony is normally not properly received in cases involving eyewitnesses. Some cases seem to imply that the mere fact that there are eyewitnesses demands exclusion of all reconstruction testimony. Other cases tend to rely more heavily upon the fact that the issues in the case do not require application of principles of science beyond the ken of the average juror. It is our conclusion that the latter reason is the proper basis for exclusion of reconstruction testimony. Most cases which we have examined involve specific factual issues such as speed or point of impact which are readily determinable by the jury from the testimony and evidence without any special knowledge of physics, engineering or other sciences. We perceive that to be the situation herein. There was no dispute as to the path taken by the Elder vehicle or the fact that its left rear panel hit the van and the front of the Elder vehicle hit the children and the pole. The only issues in this regard were the speed of the vehicle and the point at which the brakes were applied. We find nothing herein which indicates that the jury would have difficulty making decisions upon these issues without expert testimony. For that reason we believe that the trial court should properly have excluded the testimony of both Officer Maitland and Dr. Packer concerning the speed of the Elder vehicle.

It does not necessarily follow, however, that such testimony is automatically reversible error just because it was received. (Diederich v. Walters (1976), 65 Ill.2d 95, 357 N.E.2d 1128; Dobkowski v. Lowe's Inc. (1974), 20 Ill. App.3d 275, 314 N.E.2d 623.) We must determine whether such testimony was prejudicial to plaintiffs. In this regard defendant has pointed out that plaintiffs elicited the first noneyewitness testimony concerning the speed of the Elder vehicle. This was elicited from Charles Brackett, the wrecker operator. His opinion, based upon his 12 years of experience as a wrecker operator and his observation of the damage to the vehicle, was that its speed at the time it hit the pole was 25 mph. The court overruled an objection to that testimony and received it apparently partly to satisfy its own curiosity. Later, when defense counsel was in the process of eliciting Officer Maitland's opinion as to speed of the vehicle, the court commented that if Mr. Brackett were qualified to give his opinion the officer was likewise qualified to do so. We have serious reservations as to the court's conclusion in this regard. It is to be noted that Brackett and Maitland testified to speed at two different locations and that, inasmuch as the location chosen by Maitland was farther removed from the ultimate point of impact than that of Brackett, it would necessarily be more difficult to determine and there would be more factors which might enter into that determination. Yet Maitland had considerably less experience than Brackett. In addition, Maitland admitted that he had no special training to help him make such determinations and candidly admitted that he had no particular knowledge of a number of factors which would enter into the very calculation which he was attempting to make. Nevertheless, plaintiffs never objected to the officer's qualifications and made no motion to strike the officer's testimony. In view of these facts, and the fact that it was plaintiff who first introduced evidence from a noneyewitness concerning speed, we do not believe that plaintiffs can legitimately claim prejudice because the defense also offered the testimony of one noneyewitness as to speed of the Elder vehicle. We believe that Officer Maitland's testimony, considered alone, constituted harmless error.

We have reached a similar conclusion with regard to Officer Maitland's diagram, defense exhibit #3. The trial court initially admitted this diagram following the officer's testimony, but noted at the time that there were a number of things on the diagram about which the officer did not specifically testify. It is also apparent from the testimony and other exhibits that the diagram did not purport to include all skid marks found by the officer at the scene of the accident but only those which he interpreted as having been made by the Elder vehicle. Dr. Packer testified, utilizing defendant's exhibit #5, which was a larger diagram containing some of the information from defendant's exhibit #3. Immediately after the testimony of Dr. Packer the court decided to deny admission of defendant's exhibit #3 and admit defendant's exhibit #5 solely for the purpose of illustrating testimony or making argument to the jury but not giving the exhibit to the jury during deliberation.

• 3, 4 Initially we note that the fact that the diagram in question was annexed to a police report does not bar admission when the diagram is separated therefrom and only the diagram is admitted. (Walls v. Jul (1969), 118 Ill. App.2d 242, 254 N.E.2d 173.) However, we have closely examined defendant's exhibit #3 and in this particular case we believe that the diagram is confusing, difficult to understand and would not in any way be helpful to the jury in deciding this case. It should not have been admitted into evidence. Nevertheless, it is also clear from the record herein that the jury never saw defendant's exhibit #3. It was admitted into evidence immediately before Dr. Packer's testimony with the condition that it was not to be given to the jury. Following Dr. Packer's testimony defendant's exhibit #3 was excluded at the time that defendant's exhibit #5 was admitted. We therefore deem the somewhat limited admission of defendant's exhibit #3 to be harmless error.

We turn now to plaintiffs' arguments with regard to Dr. Kenneth Packer's testimony. Essentially plaintiffs make four separate arguments concerning this testimony: (1) that Dr. Packer was not qualified to testify as an expert in the field of automobile brakes; (2) that it was erroneous to allow Dr. Packer to give his opinions as to speed and movement of the Elder vehicle; (3) that allowing Dr. Packer's testimony without hypothetical questions ...


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