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Rapacki v. Pabst

OPINION FILED JANUARY 21, 1980.

ROSEMARY RAPACKI, ADM'R OF THE ESTATE OF SUSAN RAPACKI, PLAINTIFF-APPELLANT,

v.

TIMOTHY PABST, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD C. JOHNSON, Judge, presiding.

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

Rosemary Rapacki (plaintiff), administrator of the estate of Susan Rapacki, deceased, brought suit against Timothy Pabst (defendant) and other persons to recover damages for fatal injuries sustained by the deceased in an automobile accident. At trial, Timothy Pabst was the only remaining defendant. The jury returned a verdict for defendant. Plaintiff's motion for new trial was denied. Plaintiff appeals.

In this court, plaintiff urges defendant was negligent and the closing argument of defense counsel was prejudicial and denied plaintiff a fair trial.

154th Street runs east and west. It is a two-lane road with shoulders on both sides. At one point it passes over the Calumet Expressway. As one drives east on 154th from this overpass, the first intersecting street is Stony Island Avenue. Proceeding east, the next streets are Jeffery then Chappel. The distance between Jeffery and Chappel is 250 feet. Michigan City Road is two blocks east of Chappel.

On October 16, 1976, at about 11 p.m., Terry Hart was driving his automobile west on 154th Street. The deceased was sitting in the front seat. Hart had turned west on 154th Street from Michigan City Road. Defendant was driving his pickup truck eastbound on 154th at the Calumet Expressway overpass. A third vehicle, also proceeding eastbound on 154th ahead of defendant's truck, was driven by James Hartigan.

Hartigan testified that as he was coming off the overpass, he first noticed Hart's oncoming car. Hart was three-quarters of a block ahead of him. Hartigan saw Hart's car weaving from the westbound lane of the road all the way to the shoulder on the other side at least twice. Hartigan braked his automobile to 10 to 15 miles per hour. Because the Hart vehicle was weaving across both lanes, Hartigan "didn't know what side to pull off onto." He finally pulled off to the shoulder on his right side of the road. Hart's car struck Hartigan's car in the left rear. Hartigan continued pulling over towards the right. Hartigan stated that these things happened so quickly that he did not see Hart cross the center line immediately before the collision. Hartigan heard a second impact shortly thereafter. He walked back up the road and saw defendant's truck and Hart's car had collided.

Hartigan further testified he was aware defendant's truck was behind him before he reached the overpass. He continued to see defendant's truck in his rearview mirror. He saw nothing unusual in the operation of defendant's truck. Defendant never left his own lane.

Officer Leonard Kieltyka testified he arrived at the scene of the accident and observed Hartigan's car stopped on the eastbound shoulder 100 to 150 feet east of the vehicles operated by Hart and defendant. These two vehicles were near the intersection of Chappel and 154th. Hart's automobile was in the eastbound lane of 154th Street facing the eastbound shoulder and defendant's truck was stopped facing east on 154th Street. The officer further testified the shoulder on the eastbound side of 154th Street is soft and covered with gravel. It is 6 to 7 feet wide with heavy vegetation immediately right of it.

Terry Hart testified he had a date with the deceased on the evening of the accident. He was bringing her home when the collision occurred. His last recollection before the crash was driving on Michigan City Road towards 154th Street. He did not remember weaving across 154th Street nor did he remember the accident itself. His next recollection was waking up in his car after the occurrence.

The defendant testified he was proceeding east on 154th Street at 30 miles per hour. There were four passengers in his pickup truck. The road was dark. When defendant was east of the Calumet overpass and was at the Stony Island intersection, one of his passengers said, "Hey, look at that crazy guy." Defendant saw headlights from Hart's car in the trees about a block away. Defendant stated he saw Hart's car swerve into the eastbound lane four or five times. However, later in his testimony, defendant stated he only saw the headlights from Hart's car flash back and forth across the highway. He did not know if Hart's car had actually been on the eastbound lane.

Defendant testified he never left the eastbound lane. He did not apply his brakes or slow down. He did not attempt to turn his vehicle to either side because he did not know which way to go. He did not know which way Hart was going to go either.

Defendant stated he did not pull off the road to the shoulder because "there is really no place to pull off" and the ground "dips down." He also stated he did not do anything because "he [Hart] wasn't near me yet." Defendant then saw Hart's car clearly in its own westbound lane and he thought "everything was over." At this point, he did not think Hart would turn into the eastbound lane because there was nothing in the operation of Hart's car to indicate this might happen. Defendant did not see the collision between Hart and Hartigan. He "wasn't paying attention to Hartigan." Defendant saw Hart's headlights pointed towards his car and "all of a sudden, the next thing I know, I lifted my head up and there was an accident, it happened that quick."

The collision occurred a few car lengths west of Chappel. It only took "about a few seconds" from the comment by one of defendant's passengers until the collision.

Steve Aspen, a passenger in defendant's truck, testified defendant was proceeding at 30 miles per hour. Aspen saw the swerving headlights of Hart's car a quarter of a block away and watched the car approach. He never saw Hart's car in the eastbound lane before it turned in front of defendant's truck. Aspen stated concerning Hart's vehicle, "all of a sudden, instantly * * * he [Hart] just swerved in front of us broadside." Edward Halper, another ...


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