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Fern v. Pahati

OPINION FILED AUGUST 7, 1978.

EDWARD R. FERN ET AL., PLAINTIFFS-APPELLEES,

v.

BAYANI PAHATI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Plaintiffs Edward and Jacqueline Fern filed suit against defendant Bayani Pahati for personal injuries and damages arising out of an automobile accident. Defendant and his passenger subsequently filed a separate suit against plaintiffs for personal injuries. Plaintiffs' attorneys in Pahati's suit moved that the two cases be consolidated. The motion was granted. However, plaintiffs' attorneys in the suit against Pahati appeared and subsequently moved to sever the two cases. They were joined in the motion by the attorney for Pahati as plaintiff. This motion was also granted.

The case was heard before a jury, but at the close of all the evidence, the trial court directed a verdict in plaintiffs' favor on the issue of liability. The jury subsequently awarded plaintiffs $12,500 in damages. The suit against plaintiffs by defendant and his passenger was later settled out of court.

On appeal defendant argues that the trial court erred in (1) granting plaintiffs' motion for severance; (2) granting a directed verdict in plaintiffs' favor on the issue of liability; (3) allowing Edward Fern to testify as to the fair market value and damages to his automobile; and (4) finding that the jury's verdict was unanimous.

We reverse and remand.

Plaintiffs Edward and Jacqueline Fern filed suit against defendant Bayani Pahati for personal injuries and property damage arising out of an automobile accident that occurred on January 30, 1973. Defendant counterclaimed for property damage to his auto.

Subsequently, defendant and his passenger filed their own lawsuit against Edward Fern for personal injuries arising out of the accident. In defendant's suit against plaintiffs, both defendant and plaintiffs were represented by attorneys different from those who represented them in plaintiffs' suit against defendant.

In defendant's suit against plaintiffs, plaintiffs' defense attorney moved that defendant's suit be consolidated into their case. The motion was granted. However, the attorneys in plaintiffs' suit against defendant later appeared and moved that the two cases be severed. Plaintiffs were joined in this motion by the attorney for Pahati as plaintiff. This motion was also granted.

Thereafter, plaintiffs' suit proceeded to a jury trial. Remaining in that suit, however, was defendant's counterclaim for property damage. The suit for personal injuries by Pahati and his passenger against plaintiff Fern was later settled out of court.

The evidence at trial indicated that the accident occurred at the unregulated intersection of Byron and Hoyne streets in Chicago. Defendant was driving south on Hoyne while plaintiff Edward Fern was driving east on Byron.

Plaintiff Edward Fern testified that he was thoroughly familiar with the intersection of Byron and Hoyne streets. He was aware of the large apartment building on the northwest corner that partially obstructed the northward vision of a driver traveling east on Byron. Knowing of the obstruction presented by the building, he stated that he reduced his speed as he approached the intersection to 15-20 miles per hour. When he was still 30-40 feet west of the intersection, which presented his first opportunity to see any appreciable distance around the apartment building, he looked north. There he saw defendant's vehicle coming south on Hoyne and approaching the intersection. Mr. Fern stated that he reduced his speed to 5-10 miles per hour as both vehicles entered the intersection. Seeing that a collision was inevitable, he slammed on his brakes and managed to stop his vehicle just prior to impact. He then stated that defendant's right front fender collided into his left front fender. This latter statement was subsequently challenged by the testimony of Officer George Loftus.

Defendant testified that when he was approximately 50 feet from the intersection, he decreased his speed from 15-20 miles per hour to 10 miles per hour. His right foot was off the gas pedal and poised somewhere next to the brake pedal. He testified that he did not see plaintiffs' car until it was approximately one foot or a "finger snap" away from the point of impact.

Miss Arellano, a passenger in defendant's auto testified that she first saw plaintiffs' auto when it was six to seven feet away from the point of collision. She testified further that defendant's auto was in the middle of the intersection at the moment of impact, but that she did not actually see the collision because she closed her eyes.

Police officer George Loftus also testified on defendant's behalf. He stated that he spoke to Edward Fern at the hospital after the accident and that Fern stated that ...


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