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Bohnen v. Wingereid

OPINION FILED DECEMBER 31, 1979.

JAMES H. BOHNEN ET AL., PLAINTIFFS-APPELLEES,

v.

RICHARD D. WINGEREID ET AL., DEFENDANTS. — (WALTER HARTLIEB, ADM'R OF THE ESTATE OF DIANE HARTLIEB, DECEASED, ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS; DAVID ECKAUS, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. DAVID CERDA, Judge, presiding.

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

At 8:05 p.m. on December 30, 1973, a 1965 Ford and a 1963 Volkswagen smashed head-on into each other in the northbound lanes of Milwaukee Avenue in Chicago. Killed was Diane Hartlieb, 16, a passenger in the Volkswagen. James Bohnen and his sister Janet, driver and passenger in the Volkswagen, were injured. James and Janet Bohnen and the estate of Diane Hartlieb sued Richard Wingereid and David Eckaus, the occupants of the Ford. Wingereid and Eckaus each denied that he had been the driver. Eckaus in turn counterclaimed against Wingereid, the owner of the Ford. Judgment was entered in favor of the plaintiffs against both of the defendants and against Eckaus on his counterclaim against Wingereid. James Bohnen was awarded $300,000 by the jury, his sister was awarded $48,000 and Diane Hartlieb's estate was awarded $15,000. Eckaus alone appeals from these judgments which we affirm.

The accident occurred on a cold but clear evening; the road was dry. The cars collided about 150 feet north of the intersection of Milwaukee Road and Greenwood Avenue, at a spot where the roadway is six lanes wide, divided by an 8-foot rumble strip median. The Ford, which was southbound in Milwaukee Road, crossed over the median strip into the northbound lanes and struck the Volkswagen, which was northbound on Milwaukee Road.

Nancy Stress Wingereid, who married the defendant after the accident, and Elise Spencer were the first witnesses to arrive on the scene. They were northbound on Milwaukee Road in a car with two friends when they saw the "tail end" of the accident — the two cars spinning to a halt. Their car stopped at the scene and the two girls ran to the Ford. At much the same time, a second car arrived on the scene. One of its passengers, Eric Maki, went into a nearby store and called police. Another, Scott Lindberg, went to the aid of the occupants of the Volkswagen. By the time Maki made it back to the scene a crowd had gathered and police had arrived.

State Trooper Richard Stewart reached the accident 5 minutes after the collision. His testimony established the location of the vehicles. The northbound Volkswagen had been driven backwards 67.3 feet from the point of impact and came to rest facing south in the innermost northbound lane. The southbound Ford ground to a halt in the middle northbound lane 40 feet south of the point of impact. 153 feet of skidmarks led from the southbound lane of Milwaukee Road, across the rumble strip, to the point of impact. Trooper Stewart found Diane Hartlieb, who had been in the passenger's front seat of the Volkswagen, dead. James and Janet Bohnen were extricated from the badly smashed Volkswagen and taken to the hospital. Eckaus and Wingereid had gotten out of the Ford before Trooper Stewart reached the scene. They too went to the hospital for treatment.

At the hospital, the trooper questioned each of the defendants. Wingereid said that he had been a passenger in the Ford. Eckaus, after receiving Miranda warnings, declined to speak with Trooper Stewart. The Ford was then taken to a mechanic, who pronounced the car to have been mechanically fit.

At trial, James and Janet Bohnen were each unable to recall what happened immediately before the accident. Janet Bohnen could remember nothing after coming downstairs in her house just before going out. James Bohnen remembered stopping at the light at Greenwood and Milwaukee. He turned right to go northwest on Milwaukee Road, then woke up on the way to the hospital.

Richard Wingereid, who had bought the Ford three days before the accident, said that David Eckaus was driving and that he faintly remembered making the turn south onto Milwaukee before falling asleep. Wingereid woke up in the hospital. Eckaus was the only participant to have a clear recollection of the accident. In his version, however, Wingereid drove the Ford. Eckaus recalled the Ford crossing into the northbound lanes of Milwaukee Road and said that he "hollered" out. He did not hear the Ford's brakes screech, and did not feel the car passing over the rumble strip.

Nancy Stress Wingereid said that she opened the passenger's side door of the Ford immediately after the collision and pulled Wingereid out of the car. Her friend, Elise Spencer, confirmed that Eckaus was on the driver's side of the Ford. Spencer said that Eckaus got out of the driver's side of the Ford immediately after the accident, asking where the blood on his face was coming from.

Appellant Eckaus does not now argue that the jury's verdict finding him liable was erroneous or against the manifest weight of the evidence. Instead, he cites several errors which he claims denied him a fair trial. We will refer to additional testimony to the extent that it is necessary to resolve the issues raised by Eckaus, but we find no reversible error in the record.

First, Eckaus argues that it was error to deny a pretrial motion in limine to bar evidence that each defendant had been drinking in the hours before the accident. Because this evidence, which was ruled admissible, was the source of several of the other alleged errors, we will discuss it in some detail.

Wingereid, who was 18 at the time of the accident, and Eckaus, who was 19, had spent much of the afternoon of December 30, 1973, drinking beer. About 11:30 a.m. the two men drove to the Old Mill Tavern in David Eckaus' car. They were at the tavern off and on watching football games on television for at least 6 hours. Neither remembered the outcome of the games. Wingereid testified that he had at least five beers. Eckaus did not remember how much he had to drink, but testified that he was "partially intoxicated." About 7:30 p.m., they drove to a nearby game room to play pinball. There they met two friends who agreed to drive them to Wingereid's house to pick up the Ford. Eckaus' car could not be used because it was nearly out of gas.

When the defendants arrived at Wingereid's house, Wingereid went into the house for about 5 minutes. Eckaus got into the Ford. Wingereid testified that the car was parked in the driveway so that the passenger's side faced the house; Eckaus testified that the car was parked so that the driver's side faced the house. When Wingereid came out of the house he got into the Ford without walking around the car. He said he got in on the passenger's side; Eckaus said it was the driver's side. Eckaus testified that while waiting in the car for Wingereid to come out of the house, he did not have the Ford's key and did not start the car or turn on its heater. The Ford was driven from the Wingereid home to Milwaukee Avenue and the accident followed.

Scott Lindberg's deposition was read at trial. He said that the two men from the Ford were staggering when he saw them at the scene of the accident. Lindberg spoke with one of them, although he was unable to say if it was Wingereid or Eckaus. According to Lindberg, the man's breath was heavy with alcohol. Lindberg thought that the man was "kind of high." Trooper Stewart's accident ...


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