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Lesperance v. Wolff

OPINION FILED DECEMBER 11, 1979.

CHARLES LESPERANCE, PLAINTIFF-APPELLANT,

v.

CHARLOTTE L. WOLFF ET AL., DEFENDANTS-APPELLEES.



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

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Florence and Charles Lesperance were injured when their automobile collided with a car owned by David Fruchey and driven by Charlotte Wolff, defendants here. Upon trial, the jury returned verdicts for each plaintiff — Florence Lesperance in the amount of $4500, and Charles Lesperance in the amount of $4000; but the jury answered a special interrogatory in a contradictory manner when it found Charles, the driver of the car, guilty of contributory negligence. In accord with the answer to the special interrogatory, the trial judge vacated that part of the general verdict which had awarded damages to Charles Lesperance. On appeal, Charles Lesperance (hereafter plaintiff) contends that the general verdict should be reinstated because the jury's finding charging him with contributory negligence was against the manifest weight of the evidence. Alternatively, plaintiff submits that the cause should be remanded for a new trial either as to damages alone or on all issues.

On February 16, 1974, Charlotte Wolff, having received a learner's permit to drive a car, was practicing driving an automobile owned by her passenger, David Fruchey. Fruchey and Wolff were proceeding north on Lockwood Avenue when they arrived at the stop sign at Addison, an east-west street. They observed plaintiff's vehicle west about a block away, coming toward the intersection in the eastbound lane nearest the center at about 30 miles per hour. Sensing that she could safely complete the turn, Wolff took a very slow left turn into the westbound lane nearest the center line but failed to release the steering wheel to straighten the car and collided with plaintiff's vehicle.

At trial, plaintiff called Wolff and Fruchey as adverse witnesses to testify to the events preceding the collision. Wolff, in addition to the above account, stated that her automobile was about a car's length from the Addison-Lockwood intersection when the accident occurred. Plaintiff's car was completely within the eastbound lane at the time. Wolff estimated her speed as being no more than five miles per hour when she oversteered, crossed the center line, and collided with plaintiff's vehicle.

Fruchey's testimony was substantially the same as that of Wolff, but he added that only about half of his car was in the westbound lane after the collision. In his estimate, the accident occurred 20 to 25 feet beyond the intersection, and "a few seconds, five seconds" after his car crossed the center line. Fruchey was unsure but thought that plaintiff's car was 30 to 35 feet away when Wolff crossed from the westbound into the eastbound lane. He did not notice any decrease in the speed of plaintiff's automobile prior to impact.

Plaintiff testified that the pavement was dry, the weather was clear, and his view was unobstructed at the time of the accident. He saw defendant's car as it stopped at the stop sign and pulled out onto Addison. He continued to watch as it made the turn into the westbound lane, failed to straighten, came across the center line, and hit his car head-on. Plaintiff thought that the defendant's vehicle was increasing in speed as it crossed the center line, possibly to as much as 20 miles per hour. Plaintiff emphasized that he "had no chance to move," put on the brakes or sound his horn. On cross-examination plaintiff reiterated that the accident happened one to two car lengths from the intersection and that he saw defendant's car for the first time when it was 250 feet away at the stop sign. Defendants' attorney produced a deposition taken three years before the trial in which plaintiff stated that he first saw defendant's car when it was 50 to 55 feet away, making its turn into the westbound lane. When asked about the discrepancy in the statements, plaintiff responded:

"A. [Plaintiff] Well, U [sic] must have given it then.

Q. [Defense attorney] And how fast were you going when you first saw the other car?

A. Approximately 30 miles an hour.

Q. So, the very first time you saw the other car, it was 55 feet away, and you were going 30 miles an hour, is that your testimony?

A. Well, it is, yes.

Q. Now, you didn't see that other car begin to pull out of the stop sign, did you? Well, did you?

A. Yes.

Q. Wasn't it already into its turn the first time you saw it?

A. No.

Q. All right. Again, counsel, on page 10. Again, at your deposition, Mr. Lesperance, do you remember being asked this question ...


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