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Polkey v. Phillips





APPEAL from the Circuit Court of Cook County; the Hon. JOHN W. GUSTAFSON, Judge, presiding. MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiffs were the driver and passengers of a car which struck the car driven by defendant, Zander Phillips. The trial judge found defendant guilty of negligence as a matter of law and so directed the jury, which returned a separate verdict in favor of each plaintiff. The jury also found by a special interrogatory that the plaintiff driver, Georgianna Meyers, was guilty of contributory negligence, and the trial judge entered judgment n.o.v. for defendant against Georgianna Meyers based on the answer to the special interrogatory. The defendant appeals only from the judgment against him in favor of Suzanne Polkey (plaintiff), one of the passengers.

On appeal, defendant contends that the trial judge erroneously directed the jury that defendant was guilty of negligence as a matter of law and that the jury's verdict of $46,250 for plaintiff Suzanne Polkey was the result of an incorrect formula submitted to the jury in the closing argument of plaintiffs' counsel.

The car in which plaintiff was riding in the right front passenger seat had left the southbound Kennedy Expressway at the Ohio Street exit and was eastbound on the Ohio Street extension. Defendant had left the northbound Kennedy Expressway at the Ohio Street exit and was eastbound on the Ohio Street extension at the merging point of the two exit ramps. At that point, there were three lanes for traffic. Defendant was in the southmost lane and plaintiffs' car was in the northmost. The pavement was wet. Defendant skidded and came to rest in the northmost lane facing north, where plaintiffs' car collided with his left front side.

Georgianna Meyers testified that about 9 p.m. on July 9, 1974, she was driving eastbound 30-35 miles per hour in the extreme left-hand lane of the Ohio Street exit from the southbound Kennedy Expressway. It was raining. When she first saw defendant, he was in the extreme right-hand lane of the exit ramp for the northbound Kennedy Expressway. Defendant was going 50-60 miles per hour when he started sliding. He skidded from the right-hand lane, across the second lane and into her lane, stopping headed north and taking up all of her lane. When she saw defendant skidding, she put on her brakes about 43 feet from defendant, who was not then in her lane. From the time she put on her brakes two or three seconds elapsed until the collision with defendant, who was stopped. She further testified that she did not see any cars in front of defendant; nor did she recall seeing any brake lights go on in either of the other two lanes.

Mariellyn Kresin and Kathleen Kozlak, passengers in the rear seat, testified that defendant was going faster than their car, skidded into their lane, stopped and was hit by their car. The time between seeing defendant skidding and the collision was only a matter of seconds. Before the collision, the driver of their car yelled, "We are going to hit him." Kresin also testified that defendant said he was sorry. Kozlak also testified that when she first saw defendant's car he was going 50, 55 miles an hour. At that point he was ahead of their car and to their right in the second lane. He stopped in a matter of seconds; their car did not. Her car was going 20, 25 miles per hour at the impact. Defendant asked if everyone was all right. She was sure that defendant said to the police officer, "Man, I was speeding."

Plaintiff Suzanne Polkey, the passenger in the right front seat, testified that when she first saw defendant's car her car was going 25-30 miles per hour and defendant's probably around 55-60. He was skidding and stopped in their lane. Her car was going 20-25 miles an hour when they hit him. She heard her driver yell, "My God, we are going to hit him."

Anthony Trunzel, the police officer who investigated the accident, testified that defendant told him he came off the Dan Ryan Expressway into the Kennedy Expressway to go eastbound on the Ohio Street exit. He was in the third lane, lost control, spinning out and going all the way into the first lane. Defendant did not tell him that there was a car in front that slammed on its brakes, causing him to brake and lose control. Defendant started skidding when he was changing from the third lane to the second; then lost control and wound up in the first lane.

Defendant, called in plaintiffs' case as an adverse witness, testified that he did not know what time the accident happened. It was drizzling a bit at the time of the accident. He was going about 30 when he took the Ohio Street cutoff. He had been driving about 50 on the Kennedy Expressway. He first said he had been driving 3 or 4 years, and then said less than 2. He did not remember telling the police officer "I was going too fast. I was speeding." Perhaps he made such a statement. He did not know. He never told anyone in plaintiffs' car that he was sorry, really sorry. He did ask them, "Is everybody O.K.?"

Defendant was stopped 20, 25 seconds before he was hit. He saw people in the other car talking before the accident. He looked at a pair of headlights coming at him and could see through the windshield. The windshield wipers were on. He saw the two people in the front seat talking. He does not know if the headlights were on the car as it came toward him. He is not sure. He was not looking at the headlights; he was looking at the car.

When he came out of the Ohio Street ramp onto the Ohio Street extension, he was in the southmost lane. When he reached the merger, he was going 30, 35. The street was wet. When he came around the curve he put on his brakes to slow from 30-35 down to 20, 25; "I don't know." After coming out of the curve he speeded back up to 35, 30. He increased his speed when he was in the straightaway. He could see six or seven car lengths ahead. The traffic was not stopped. He continued to accelerate. There was no traffic directly in defendant's lane. There was in the lane to the left. Defendant put on his brakes again when the car in front of him hit the brakes. Defendant was about 2 1/2, three car lengths from the car in front of him, going about 35, 40. Defendant was in the third (southmost) lane at that point. When the car put on its brakes, defendant jammed on his, skidded to the left and went over to the first (northmost) lane. When he applied his brakes, defendant did not have to cross into lane two. He merged into lane two because he was trying to go all the way to lane one.

When the accident happened, the front end of defendant's car was at an angle facing northwest, with the right part of his car against the curb of the first (northmost) lane and the rear extending half over into the second lane.

When he applied his brakes, he started from lane three. His car did not fish-tail on the wet pavement. He was in lane three, hit his brakes and slid into lane one. He almost lost control of his car.

When he first applied his brakes, he was in lane two (the middle lane), into which he had moved three or four car lengths past the merger point. He was going 30, 35 when he changed lanes. He gave a turn signal to do that. The car that put on its brakes was also in lane two. Defendant then put on his brakes; as a result, his car swung almost completely around, ended up in lane one and came to a dead halt. From the time defendant applied his brakes, his car travelled three or four car lengths; "I don't know."

The distance from where defendant first saw the car put on its brakes until defendant finally stopped was 43-45 feet. He was stopped for 20, 25 seconds, "I don't know." When he put on his brakes he did not see plaintiffs' car. When he stopped he saw it coming straight toward him four or five car lengths away. He is not sure he was stopped 20-30 seconds. He was not counting the seconds. He told his girlfriend, who was in the car with him, that plaintiffs' car was going to hit him.

He told the police officer how the accident happened the best he could recall. He didn't remember whether he told him he skidded from lane three into lane one, that he lost control of the car, or that he was going too fast. He did not tell him that he was speeding. When he ...

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