APPEAL from the Circuit Court of Kane County; the Hon. JOSEPH
T. SUHLER, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
Plaintiff, Robert Wassman, individually and as administrator of the estate of his son, Robert C. Wassman, brought an action for wrongful death against defendant, Beth Ritchason. The suit arose as a result of a collision between decedent's car, driver by Craig DeHol in which decedent was a passenger, and the defendant's car. The trial resulted in a jury verdict in favor of the defendant and the plaintiff appeals.
The collision occurred at approximately 9:10 p.m. on July 12, 1974, at the intersection of Route 25 and Albert Drive, located in East Dundee, Illinois. At that location Route 25 is a four-lane, preferential highway, running north and south; Albert Drive is a two-lane road running east and west. Several witnesses testified at trial that Route 25 at that location is quite hilly and that these hills restrict one's ability to see northbound traffic while waiting at this intersection.
Defendant was called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60) and testified that accompanied by her friend, Victoria Andriano, she was proceeding west on Albert Drive in a 1964 Buick Special. There is a stop sign for westbound traffic on Albert Drive at the intersection of Route 25; however, the stop sign is set back from the intersection. Defendant stopped at the stop sign and intending to make a left hand turn onto Route 25 pulled up until she could see clearly in both directions. She observed two cars, approximately two blocks away, heading north, and two cars, approximately three blocks away, heading south, one in the outside lane and one a little further away in the inside lane. Just before pulling out she looked north; then she started pulling out and looked to the south to determine if the northbound car in the outside lane was changing lanes. Then she looked to the north again and saw a red Ford Mustang 10 feet from her coming from the south. At this point her car completely occupied the innermost northbound lane of Route 25. After the impact, her car ended up in the outer northbound lane. Defendant further testified that she was going between 10 and 15 miles per hour when she first observed the Mustang; she did not know how fast the Mustang was traveling. She did not apply her brakes at any time while she was proceeding through the intersection; she did not know if the headlights of the Mustang were on.
George Cies, an Illinois State Trooper testified for plaintiff that he was detailed to investigate a collision at the intersection of Route 25 and Albert Drive. Trooper Cies had over 100 hours of training in accident investigations at the Police Academy as well as in-service training. Through the training he was educated in investigation and determination of skid marks at the scene of an occurrence. He had investigated 200 accidents. In response to plaintiff's questions, Trooper Cies testified that in his investigation of this occurrence he observed two sets of skid marks, one set belonging to the Buick running from the northwest to the southwest, measuring 12 feet, and a second set running north to south, belonging to the Mustang; according to Cies, he did not recall measuring the second set of skid marks but that they seemed longer than the first set. He was of the opinion that the skid marks indicated braking prior to the point of impact. He was also asked and did indicate on plaintiff's exhibit No. 7, the point of impact of the two vehicles. Viewing the photographs of the scene, admitted into evidence, it would appear that the point of impact was in the inside northbound lane.
On cross-examination, Trooper Cies testified that on the basis of his investigation of the collision and his knowledge and experience, he was of the opinion that the Mustang was traveling at between 60 and 70 miles per hour at the time of impact. Counsel for defendant, Craig DeHol (later dismissed as a defendant), objected to the giving of Trooper Cies' opinion; the objection was overruled.
Craig DeHol testified for the plaintiff that he and the decedent had spent the afternoon together looking for someone to balance the new tires the decedent had purchased for his Mustang. Having accomplished this task, they returned to Craig's home in Carpentersville for supper, at which time Craig had two beers and the decedent had one beer. Next they went to a car wash in the decedent's car with the decedent driving; both later had an additional beer. Around 8 p.m. with Craig at the wheel of decedent's car, they drove around downtown Elgin looking for girls. After about an hour Craig proceeded to drive to the decedent's home; Craig's own car was there and the decedent had a television program he wanted to see. Craig remembered turning on the headlights on the Mustang because the lighting in downtown Elgin required them; decedent had also cautioned him about watching the speed limit as the oversized rear tires on the Mustang would cause the speedometer to read lower than it actually was.
Due to a concussion he received in the collision, Craig was unable to remember anything after passing a Burger King some distance from Route 25 until he woke up in the emergency room of the hospital. Craig also testified that he did not recall statements attributed to him by Trooper Cies that he always drove 20 miles over the speed limit and frequently drove with only parking lights. He explained that at the time he was in a state of shock having just seen the body of the decedent.
Thad Aycock from the Traffic Institute at Northwestern University testified for plaintiff. He trains police officers in motor vehicle accident investigation, and had particular expertise in headlight investigation. Aycock explained the elements of a headlight and how it can be determined whether one is on or not at the time of a collision. Regarding the Mustang, in January of 1975, he had gone to Erickson's Auto Sales and Parts and identified the car by the identification number he had been furnished with and removed the headlights. From the condition of the right headlight Aycock concluded that it was on at the time of the collision; the left headlight had been damaged to such a degree that it would be impossible to form an opinion as to whether it was on at the time of the collision.
During cross-examination defendant's counsel showed Aycock defendant's exhibit No. 19-a photograph of the Mustang following the accident. While Aycock stated that it appeared to be the same car and the same damage, he stated that the right headlight in the photograph was gone instead of the left one as he had previously testified and that the left headlight appeared to have a good deal of the lamp remaining instead of the right one as he had observed earlier. He could not be sure from the photograph whether the lens was intact in the left lamp as shown by the photograph or whether the reflector remained. On the basis that there was insufficient evidence that the headlights were in the same condition when they were examined, as immediately following the collision, the trial court struck Aycock's testimony.
Debra Nepermann and Janice Schroeder occupied a car heading south on Route 25, in the inside lane, north of the intersection with Albert Drive. Debra, who was driving, testified that she observed defendant's car preparing to turn left into her lane, going south; that defendant's car posed no danger to her car; and that when defendant's car was almost into her lane a red Mustang came out of nowhere and struck defendant's car. Debra did not see any headlights on the Mustang; she did not know if the defendant's car had its lights on or not.
Janice Schroeder, a passenger in Debra's car, testified that she saw defendant's car in the middle of the two northbound lanes, not going too fast; she did not see the Mustang until right before impact; in her opinion the Mustang was going at least the speed limit. She did not see any lights on the Mustang.
Robert Brinkman testified for the defense that on the evening of the collision he was proceeding north on Route 25 at approximately 9 p.m. and had stopped for a red light at the intersection of Grant Drive and Route 25 approximately one mile from Albert Drive. As he pulled away from the stoplight, two cars pulled around him; one was a red Mustang and the other was a dark colored Camero or Firebird. Brinkman was traveling about 45 miles per hour at that time; he estimated the two cars to be going about 60 miles per hour. Once they pulled out in front of him they accelerated to about 90 miles per hour. He continued to watch the two cars until they went over a hill, approximately one-quarter mile from Albert Drive. As Brinkman came to the top of the hill he saw the Mustang that had gone around him flipped over on its side and another car off to the side of the road. On cross-examination, he testified that he did not know whether the cars had headlights on, though he did observe that the taillights were on. On a prior deposition he had testified that as best he could recall both vehicles had their headlights on.
The first issue on appeal is whether the trial court erred in giving the following instructions ...