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Casciola v. Gardner





APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.


___ N.E.2d ___ Graziella Casciola (plaintiff) obtained leave to appeal from an order granting a new trial in plaintiff's action for personal injuries (Ill. Rev. Stat. 1979, ch. 110A, par. 306), against Samuel Gardner (defendant). A jury awarded plaintiff $25,000 in compensatory damages.

In this court, plaintiff urges the trial court abused its discretion in granting defendant a new trial because defendant did not object to expert testimony offered by plaintiff and defendant did not raise this objection until his amended post-trial motion.

Defendant urges plaintiff has failed to file a complete record under Supreme Court Rule 306(b) so that it is impossible for this court to determine whether the trial court abused its discretion in granting a new trial; the trial court determined the trial was unfair even though no objection was made by defendant to the prejudicial testimony and the testimony of the expert was prejudicial.

The record before us shows Harrison Street runs east and west. At its intersection with Morgan Street, it is four lanes wide with two lanes eastbound and two westbound. There is a lane wide tree-lined median between the east and westbound lanes. The median narrows on both sides to make room for left turn lanes.

Plaintiff testified, through an interpreter, that on December 19, 1974, at approximately 4:15 p.m., she was walking home from work with a friend. They were about to cross south from the north curb of Harrison, 120 feet west of the intersection with Morgan. Plaintiff and her friend looked at both sides of the street. They saw no traffic approaching from the left. They crossed one lane and were about two or three steps from the median when plaintiff was struck by a vehicle. Plaintiff's friend escaped injury. Plaintiff further testified she had looked to her left several times as she was crossing but did not see any vehicle until just before she was hit. At that point, she saw the car coming "very fast".

Weymen L. Edwards, assistant dean at University of Illinois, testified he was in a parking lot adjacent to Harrison Street. He was about to get into his car when he heard the screech of brakes. He then heard an "impact," looked up, and saw a dark object flying through the air 17 to 20 feet off the ground. He saw defendant's car "resting" against a fire hydrant. Immediately in front of the car, he saw "a person lying on the grass." He noticed defendant had left the car and had run towards plaintiff, who was lying on her side in the median behind the car. Two people in the back seat of the car threw beer cans out of the car onto the lawn.

Roger Clawinski, age 31, who had been driving a car for approximately 15 years, testified he was in his car on Morgan Street heading southbound. He stopped at a red light at the intersection with Harrison. As his light turned green, he saw defendant's car "run the light going westbound on Harrison Street at a high rate of speed." Clawinski estimated the speed of defendant's car as 65 miles an hour. Clawinski then saw defendant's car go from the left lane "up onto the sidewalk with sparks flying out from underneath the car."

Ward Swenson testified he was waiting for a bus on the south side of Harrison approximately 300 to 400 feet east of Morgan. He observed defendant's car going west at "over 60 miles an hour." As the car approached the intersection, "the light changed." The light was red when defendant's car went through the intersection.

Melvin Walker testified he is an officer for the University of Illinois Police Department. He was called to the scene of the accident. When he arrived, he saw plaintiff sitting on the curb of the median. He questioned defendant who admitted he was the driver of the vehicle involved in the accident. He asked defendant how fast he had been going. Defendant replied, "Around 40, 45 miles an hour." Walker stated the speed limit on Harrison is 30 miles an hour.

Officer James Monahan of the Chicago police department testified he arrived at the scene just as plaintiff was being taken away in an ambulance. In his investigation, he measured the skid marks left by defendant's vehicle. A diagram was introduced into evidence which purported to show the path of the skid marks from the point of impact with plaintiff across two lanes of traffic up onto the curb on the north side of Harrison. The skid marks started approximately 30 feet before the point of impact with plaintiff. On direct examination, Monahan testified he measured 229 feet of skid marks. However, on cross-examination, he stated the skid marks could have been only 191 feet long. He also testified the road was dry.

Thad L. Aycock, assistant supervisor and instructor at Northwestern University Traffic Institute, testified for plaintiff as an expert witness as to his estimate of the speed of defendant's vehicle based on the length of skid marks found after the accident. He stated, based on the type of roadway surface on Harrison, the type of vehicle skidding, the pavement being dry, and the length of skid marks of defendant's car being 191 feet, in his opinion the speed of defendant's vehicle was between 56 and 63 miles an hour. Assuming 229 feet of skid marks, in his opinion the speed would be between 61 and 69 miles an hour. Aycock also made a calculation based on the length of skid marks being 203 feet. In his opinion, this speed was between 58 and 65 miles an hour.

John Johnson testified he was a passenger in defendant's car. He was seated in the front passenger side. As defendant drove westbound on Harrison, Johnson was turned around and talking to his brother, who was sitting in the back seat of the car. The car was traveling "approximately 30, 35, 40 miles an hour." When the car was 20 to 30 feet away from the intersection with Morgan Street, Johnson noticed the traffic light was green. He did not see the light turn yellow or red. After going through the intersection, the car swerved and there was an impact. At that time, Johnson did not know what had caused the impact. He had not seen any pedestrians attempting to cross the street in front of the vehicle. He ascertained later the impact was caused when the car hit a pedestrian. After the occurrence, Johnson asked defendant what had happened. Defendant told him, "`A lady stepped out from the curb in front of me and come across the street.'"

Defendant testified he was traveling "about 30, 35 miles an hour" as he approached the intersection of Harrison and Morgan. When he was 15 to 20 feet away, the light was green. When defendant's car was in the intersection, the light turned yellow. At that time, defendant saw pedestrians at the intersection about halfway down the block. After he went through the intersection, he saw one pedestrian run across the street when he was 20 to 30 feet away from her. At this point, the pedestrian was more than halfway across the westbound lanes. Defendant swerved to the right to try to miss the pedestrian. However, the car struck the pedestrian. Defendant lost control of his car and hit a fireplug. Defendant ...

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