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Dombrowski v. Laschinski

OPINION FILED DECEMBER 20, 1978.

CHERYL DOMBROWSKI, PLAINTIFF-APPELLEE,

v.

GERALD W. LASCHINSKI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Gerald W. Laschinski appeals from an order of the Circuit Court of Cook County granting the motion of Cheryl Dombrowski for a new trial. The plaintiff initiated this action to recover damages allegedly incurred when the defendant negligently struck her with his car while she was crossing Northwest Highway in Barrington, Illinois. The suit was tried before a jury and, at the close of evidence, the jury returned a general verdict in favor of the plaintiff. The jury also returned a special interrogatory finding the plaintiff guilty of contributory negligence. Therefore, the trial court entered judgment in favor of the defendant.

The plaintiff subsequently filed a post-trial motion raising eleven errors as grounds for a new trial. The trial court overruled ten of the alleged errors but ordered a new trial based upon the eleventh ground: that the court had erroneously forced plaintiff's counsel to read a portion of an evidence deposition to the jury.

The defendant, as part of his case-in-chief, had read to the jury the entire direct examination of the evidence deposition of Shiela Aldrich, an eyewitness to the accident. The plaintiff introduced additional material from the deposition into evidence. However, instead of reading the entire cross-examination, she chose only to read three separate questions from the deposition. Those questions were as follows:

1. "Q. Were any lights on the highway along there?

A. Yes, by the gas station.

2. "Q. Did they light up the highway there, where the accident occurred?

A. Yes.

3. "Q. What was the condition of the light at the time, was it dark or just getting dark * * *?"

At this point the defendant raised an objection to the fact that the plaintiff was "skipping around" and, after a discussion off the record among the attorneys and the court, the plaintiff's counsel read the entire cross-examination of the deposition to the jury. Upon consideration of the plaintiff's post-trial motion, the trial court concluded that it had committed reversible error in requiring plaintiff's counsel to read the remainder of the deposition, and stated the following:

"* * * I [order a new trial] because the court practically forced [Dombrowski's counsel] to read that in front of the jury and there was a little commotion before the jury and perhaps I believe it could have prejudiced this court to such an extent he's entitled to a new trial here." (Emphasis added.)

Three issues are presented in this appeal: (1) whether the trial court improperly concluded that it had erred in requiring the plaintiff's counsel to read the entire cross-examination of the deposition to the jury, (2) whether, assuming the existence of such error, the mistake prejudiced the plaintiff's case and (3) whether the plaintiff waived any error by failing to either object to the reading of the entire cross-examination or to move to strike the material after it had been read.

The defendant first contends that the trial court did not commit error when it forced the plaintiff's counsel to read the entire cross-examination of the deponent. The reading of the entire cross-examination, he asserts, was necessary under Supreme Court Rule 212(c) (Ill. Rev. Stat. 1975, ch. 110A, par. 212(c)) in order to place the three questions already read by the plaintiff's counsel into their proper context. Supreme Court Rule 212(c) reads as follows:

"(c) Partial Use. If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the ...


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