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Kyowski v. Burns

OPINION FILED MARCH 30, 1979.

SOPHIE KYOWSKI, PLAINTIFF-APPELLANT,

v.

CHRISTINE ESTES BURNS, DEFENDANT-APPELLEE.



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

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Plaintiff filed an action to recover damages for alleged injuries sustained after being struck by defendant's automobile. Following a jury trial in which plaintiff was found guilty of contributory negligence, a verdict was entered in favor of defendant. Plaintiff appeals.

The issues presented for review are (1) whether defense counsel committed prejudicial error in questioning Officer Shimkus regarding his police report of the accident; (2) whether defense counsel committed prejudicial error by allegedly attempting to impeach plaintiff's testimony and then failing to offer proof of the alleged impeachment; (3) whether the court erred in granting defendant's motion in limine, preventing any reference to the subsequent repair of defendant's automobile; (4) whether the court erred in permitting defendant to introduce photographs which allegedly did not depict accurately conditions existing at the time of the accident; (5) whether defense counsel committed prejudicial error by inquiring as to traffic conditions subsequent to the accident; (6) whether the court erred in sustaining defendant's motion to strike the testimony of plaintiff's witness Arthur Fager; (7) whether the court committed error by requiring plaintiff to lay a foundation prior to introducing alleged admissions from defendant's deposition; (8) whether the court erred in not declaring a mistrial where defense counsel allegedly concealed from plaintiff a prior statement of Officer Shimkus; and (9) whether the alleged "closeness" of the facts in this cause mandates a reversal when any "substantial" error is found to exist.

We affirm.

Plaintiff Sophie Kyowski testified at trial as follows: On January 15, 1973, between 6 and 6:30 p.m. plaintiff was "shopping" at the Chadley Shoe Store at 4866 West Irving Park Road. Upon leaving the store she proceeded to cross Irving Park (a six-lane road) in a southerly direction at the crosswalk located at Lamon, a north-south street which ends on the south side of Irving Park. (This is generally referred to as a "T" intersection.) Looking east plaintiff observed an automobile approximately one block away proceeding westbound on Irving Park. After crossing the lane closest to the north curb (parking lane), plaintiff observed that the auto was only one-half block away. When plaintiff approached the third lane of traffic going west, the auto was only 15 feet away. Plaintiff then attempted to step back, but she was struck by the front center portion of the auto. Plaintiff did not hear any horn or brake noise prior to the impact. She estimated that the car was traveling 30 miles per hour. Plaintiff could not recall what happened after she was struck by the auto.

Robert Ness, manager of the Lyon & Healy Music Store at 4902 Irving Park, testified that on January 15, 1973, at approximately 5:30 to 5:45 p.m., he heard a "loud screech" of brakes outside the store. He observed a woman lying in the street in front of the Fay Hoosin store located next door at 4904 Irving Park. He also observed an auto stopped in the third westbound lane, about five feet beyond the woman. Ness described traffic as "quite heavy" at the scene of the accident and stated that cars were "parked solidly along the north curb."

Arthur Fager, a naprapath, *fn1 testified that he treated plaintiff on nine occasions between April 1973 and June 1973. His treatments involved "manipulative techniques to the ligaments." He testified that the practice of naprapathy does not require a license. The court sustained defendant's motion to strike Fager's testimony, finding that plaintiff failed to "connect" Fager's testimony to the alleged accident.

Dr. Kirk, head of the Department of Orthopedic Surgery at Northwest Hospital, testified that on January 15, 1973, he examined plaintiff in the emergency room at Northwest Hospital. His examination revealed that plaintiff had sustained fractures of the pelvic bone and a fractured left femur. He also stated that her injuries resulted in a deformity commonly known as "knock knees."

Chicago police officer Shimkus testified as follows: On January 15, 1973, at approximately 5:30 p.m. he received a call directing him to proceed to Irving Park and Lamon. After arriving at the scene, Officer Shimkus conducted an investigation and determined that the accident occurred in front of 4904 West Irving Park. On January 16, 1973, plaintiff told Shimkus at Northwest Hospital that she did not remember what had happened.

Defendant Christine Estes Burns testified to the following: On January 15, 1973, at approximately 5:30 p.m., accompanied by her friend Mary Ellen, defendant was driving westbound on Irving Park in the lane closest to the street center. As she neared Lamon, she observed traffic was heavy; there were cars ahead, behind and to the right of her car.

Defendant first observed plaintiff near the right of her car "an instant" prior to contact which occurred above the right front wheel of defendant's auto at a point 50 to 75 feet west of the intersection at Lamon. Defendant was able to stop her car within two car lengths west of the point of impact. Defendant first aided plaintiff; then she entered the uniform store located immediately west of the Fay Hoosin store and called the police.

Mary Ellen Wauck testified as follows: She was a passenger in Ms. Burns' auto which was traveling west on Irving Park. She observed cars parked "all along the curb lane" and described traffic conditions as "moderately heavy." Ms. Wauck first observed plaintiff when she was only three to four feet to the right of the car. Plaintiff was then hit by defendant's car "just above the right front wheel." Ms. Wauck testified that the accident occurred in front of the uniform shop, approximately 60 to 70 feet west of the intersection of Lamon and Irving Park.

In a special interrogatory the jury found plaintiff guilty of contributory negligence and returned a verdict in favor of defendant.

I

• 1 Plaintiff contends that defense counsel committed error in attempting to introduce as evidence statements contained in Officer Shimkus' police report. Plaintiff objects specifically to the officer's testimony that his "investigation" revealed the accident occurred at 4904 West Irving Park Road. Police reports generally are inadmissible "to divulge substantive evidence to the jury." (Hall v. Baum Corp. (1st Dist. 1973), 12 Ill. App.3d 755, 760, 299 N.E.2d 156.) In the case at bar the officer's conclusion as to the location of the accident site was based upon his conversation with Robert Ness, Mary Ellen Wauck and defendant at the accident scene. Prior to the officer's testimony defendant testified that the accident had occurred at the west end of the Fay Hoosin store (4904 West Irving Park). Mr. Ness had also testified that he observed plaintiff lying in the street at 4904 West Irving Park, and defendant's car was stopped 10 to 15 feet further west. Ms. Wauck testified that the accident occurred in front of the Fay Hoosin store. In view of the fact that the jury heard testimony regarding the alleged point of impact from the three witnesses upon which the officer based his conclusions, the officer's testimony was merely cumulative and any error resulting was non-prejudicial. See Jacobs v. Holley (2d Dist. 1972), 3 Ill. App.3d 762, 279 N.E.2d 186; Clifford v. Schaefer (1st Dist. 1969), 105 Ill. App.2d 233, 245 N.E.2d 49.

We note that during direct examination of the officer, plaintiff's counsel attempted to use the police report to establish certain statements of defendant. He cannot now be heard effectively to complain of similar action by defense counsel. See Forest Preserve District v. South Holland Trust & Savings Bank (1st Dist. 1976), 38 Ill. App.3d 873, 349 N.E.2d 689; Economy Truck Sales v. Granger (2d Dist. 1965), 61 Ill. App.2d 111, 117, 209 N.E.2d 1.

II

Plaintiff contends that defendant committed reversible error by attempting to impeach plaintiff's testimony and then failing to offer proof of the alleged impeachment. Plaintiff argues that defendant's failure to offer proof of plaintiff's alleged statements to Dr. Kirk infers that plaintiff had made "other" statements to Dr. Kirk. During cross-examination of plaintiff the following exchange occurred:

"Mr. Meyers: And did you tell him [Dr. Kirk] that you really didn't recall what happened? You really didn't remember being in an accident.

Mr. Fishman: I am going to object as to the time and place of these conversations, in an operating room or out ...


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