APPEAL from the Circuit Court of Monroe County; the Hon. ALVIN
H. MAEYS, JR., Judge, presiding.
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 1, 1980.
Plaintiff-appellant Marcia Quick, the administrator of the estate of her deceased husband, Lebert E. Quick, Jr., appeals from a judgment in favor of the defendant-appellant, Earl W. Nagel, after a jury trial of a wrongful death action in the Circuit Court of Monroe County.
The only issues presented for our review are whether the trial court erred in refusing to give jury instructions tendered by the plaintiff regarding habit testimony and circumstantial evidence.
The plaintiff's decedent was killed as his automobile pulled onto a country road from a driveway and was struck by the defendant's pickup truck. The accident took place in the early evening hours of a dull, gray, and misty day, and the road was wet. Both the defendant and the decedent were familiar with the road and the location of the driveway.
There were no eyewitnesses to the accident except for the defendant. Called as an adverse witness by the plaintiff, he testified that he was driving at 40 to 45 miles per hour, rounded a curve some 120 feet from the driveway, and saw the decedent's car slowly entering the road without stopping. The defendant applied his brakes, went into a skid, and collided with the decedent's automobile.
The plaintiff testified that her husband had been industrious, thrifty, and in good health, and was a tidy, neat, and well-ordered person. He had driven out of the driveway in question on numerous prior occasions.
The trial court refused the plaintiff's tendered instructions as to the inference of due care on the part of the decedent which might be drawn by the jury from evidence tending to show that he was a person of careful habits (Illinois Pattern Jury Instructions, Civil, No. 10.08 (2d ed. 1971) (hereinafter cited as IPI Civil)) and as to the proof of facts by circumstantial evidence (IPI Civil No. 1.03).
In this court, the plaintiff argues that the failure to give the tendered instruction regarding habit testimony was reversible error, because it precluded the plaintiff from proving the essential element of her case that her husband was in the exercise of due care at the time he emerged onto the roadway and immediately prior thereto. The plaintiff argues that the fact that an eyewitness to the accident testifies does not preclude the use of habit testimony unless the testimony of the eyewitness is "almost conclusively determinative" of the issue of contributory negligence.
The quoted language is taken from the opinion of the supreme court in Plank v. Holman (1970), 46 Ill.2d 465, 264 N.E.2d 12. In that case, the plaintiff sued as executrix of the estate of her husband. She exercised her privilege under the dead man's statute as to all defendants. She was herself an eyewitness, and, like the defendant in the instant case, was called to testify under section 60 of the Civil Practice Act. In addition to stating what she had personally seen, she was permitted to testify as to her husband's careful habits. In holding that the secondary evidence should not have been admitted, the court stated:
"Whether plaintiff may be considered an eyewitness to the accident is determined by the circumstances she observed. If the plaintiff could relate circumstances from which the decedent's behavior and operation of his automobile might be reasonably inferred, she may be termed an `eyewitness.' (See: Elliot v. Elgin, Joliet & Eastern Railway Co., 325 Ill. App. 161.) It is not necessary that an eyewitness see everything that occurred at the accident scene. Although the plaintiff did not see all three automobiles involved immediately before the accident, she could determine the location of her husband's auto in relation to the center line of the highway. The location of decedent's automobile at impact would be almost conclusively determinative of the issue of the negligence of the defendants and the lack of decedent's contributory negligence." (46 Ill.2d 465, 469, 264 N.E.2d 12, 14.)
The court went on to hold that use of such secondary evidence to prove that the decedent was in the exercise of due care at the time of the occurrence would have been permissible only if direct evidence were shown to be unavailable.
Numerous Illinois cases have discussed the admissibility of habit evidence. As summarized by the Appellate Court for the First District in the recent case of Gasiorowski v. Homer (1977), 47 Ill. App.3d 989, 365 N.E.2d 43:
"* * * The cases in Illinois have established that where there are no eyewitnesses to an accident, or where the only eyewitnesses are silenced by death, amnesia, mental incompetency, or the Evidence Act (Ill. Rev. Stat. 1975, ch. 51, par. 2) evidence of the plaintiff's pertinent habits may be admitted on the issue of whether the plaintiff was in the exercise of due care immediately prior to and at the time of the accident. (See McElroy v. Force (1968), 38 Ill.2d 528, 232 N.E.2d 708; Casey v. Chicago Railways Co. (1915), 269 Ill. 386, 109 N.E.2d 984; Eichorn v. Olson (1975), 32 Ill. App.3d 587, 335 N.E.2d 774; City of Chicago v. Doolan (1900), 99 Ill. App. 143.) The essential thrust of these holdings has been that in such situations, where no better evidence on the issue is available, habit evidence is admissible in order to give the plaintiff a fair chance to prove his freedom from contributory negligence. This rule of necessity, however, does not extend beyond its own reason. Where there are available competent witnesses who have observed and can relate enough of the circumstances of the accident so as to form a sufficient basis from which the trier of fact might reasonably infer the exercise of or failure to exercise due care by ...