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Mantia v. Kaminski

OPINION FILED OCTOBER 27, 1980.

MALLORY MANTIA, PLAINTIFF-APPELLANT,

v.

LARRY KAMINSKI, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS JANCZY, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ Mallory Mantia brought an action against Larry Kaminski for damages for injuries sustained in an auto accident. The trial court directed a verdict in favor of Kaminski on count II of the complaint wherein Kaminski was charged with wilful and wanton conduct. The jury returned a verdict in favor of defendant on count I of the complaint. Plaintiff appeals.

On appeal Mantia contends that (1) she was denied the right to impeach a defense witness; (2) the trial court erred in refusing an instruction tendered by plaintiff; (3) she was prejudiced by defendant's failure to properly answer interrogatories; (4) the directed verdict was erroneous; and (5) the trial court erred in striking evidence of an action filed against defendant by a passenger in his car.

We affirm.

This action arose from the collision of vehicles driven by Mantia and Kaminski at the intersection of Ashland Avenue and Sauk Trial Road in South Chicago Heights, Illinois. Plaintiff was travelling north on Ashland Avenue. Traffic on Ashland at the intersection in question was controlled by a stop sign. Defendant was driving east on Sauk Trail Road where there were no traffic control signals. Both streets were two-lane roadways.

Mallory Mantia testified that she had stopped at the stop sign which was 15-20 feet from the intersection. She looked west and saw car lights three to four blocks away. As Mantia drove slowly to the intersection, the lights neared to 1 1/2 blocks from the intersection. As she entered the intersection she heard a car horn, and was struck by defendant's vehicle.

Kaminski testified that he saw Mantia's car approximately four car lengths away as he entered the intersection. Mantia was travelling at a steady speed. When the vehicles collided, plaintiff had not yet crossed the center line of Sauk Trail Road. Kaminski's van spun upon impact and rolled over two or three times.

Debra Berg and Robert Sherick were passengers in Kaminski's van. Berg and Sherick testified that they first observed plaintiff's car as the van entered the intersection. Mantia's car was three to four car lengths away and neither witness saw Mantia's car stopped. Both Berg and Sherick estimated that Kaminski was travelling 30 miles per hour. Berg testified that the speed limit on Sauk Trail Road was 35 miles per hour. Further testimony revealed that Mantia was travelling between 30 and 40 miles per hour and that Sauk Trail Road is straight for approximately two to three blocks west of Ashland.

Mark Stewart and David Apking had passed defendant's van while driving in the opposite direction on Sauk Trail Road. They turned around to follow defendant and came upon the accident scene. Apking testified that defendant was travelling 25 to 30 miles per hour and that the speed limit was 35. When he arrived at the intersection, he spoke with Mantia, who told him that she did not see the stop sign. Mark Stewart, called as a witness by plaintiff, estimated defendant's speed at 30 to 40 miles per hour. He further testified that the speed limit was 25.

First, Mantia argues that the trial court erred in refusing to allow impeachment of Debra Berg. Prior to testifying, Berg had reviewed a written statement transposed from a telephone conversation which she had with an insurance adjuster. Mantia sought to impeach the witness with the statement by reading parts of it. The trial court permitted plaintiff to question Berg regarding statements contrary to her trial testimony, but refused the request to read the statement because some portions were unintelligible.

We first note that Mantia was not prohibited entirely from impeaching the witness. Hence, the only issue is whether the trial court abused its discretion in limiting the scope of impeachment. Matters of impeachment are within the discretion of the trial court. O'Brien v. Walker (1977), 49 Ill. App.3d 940, 364 N.E.2d 533; Wenzell v. MTD Products, Inc. (1975), 32 Ill. App.3d 279, 336 N.E.2d 125.

• 1 Here, parts of the statement read "n/a" which means not audible. In fact, "n/a" appears in the middle of sentences rendering them meaningless. Hence, the trial court did not abuse its discretion in limiting the manner in which the witness was to be impeached.

Secondly, Mantia contends that the jury was improperly instructed. The instruction objected to is as follows:

"If a driver is involved in a collision at an intersection after driving past a stop, such collision shall be deemed prima facie evidence of the ...


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