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Snedden v. Lavenka

OPINION FILED JANUARY 27, 1981.

KATHRYN SNEDDEN, ADM'R OF THE ESTATE OF MELVIN SNEDDEN, DECEASED, PLAINTIFF-APPELLANT,

v.

RICHARD J. LAVENKA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. U.S. COLLINS, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

As administrator of the estate of her husband, Melvin Snedden, plaintiff brought a wrongful death action against defendant, Richard J. Lavenka, claiming that defendant's negligence in the operation of his automobile on August 13, 1975, caused an accident which led to Snedden's death on August 31, 1975. Defendant admitted that Snedden died from injuries sustained in the accident but denied decedent's freedom from contributory negligence. The jury returned a verdict for defendant. From that verdict plaintiff appeals, presenting the following issues for review: (1) whether the jury's verdict was against the manifest weight of the evidence; (2) whether the trial court properly granted defendant's motion in limine prohibiting plaintiff from introducing evidence of the decedent's medical condition after the accident; (3) whether the trial court should have permitted plaintiff to introduce evidence of the decedent's habits of due care; (4) whether the trial court erred in allowing defendant to file an amended answer at the close of the evidence which raised the defense that plaintiff's decedent had violated a statute; (5) whether there was sufficient evidence in the record to support a jury instruction on defendant's theory that Snedden was contributorily negligent in violating a statute; and (6) whether the trial court properly granted defendant's motion for summary judgment as to plaintiff's cause of action seeking damages for decedent's conscious pain and suffering.

For the reasons hereinafter set forth we affirm the judgment of the circuit court of Cook County.

Plaintiff's decedent, Melvin Snedden (hereinafter referred to as Snedden), died on August 31, 1975, from injuries he sustained following a collision on August 13, 1975, between his automobile, a Honda Civic, and a Cadillac driven by defendant, Richard J. Lavenka (hereinafter referred to as Lavenka). The accident occurred on a bridge carrying southbound traffic on Route 45 (Mannheim Road) just north of Route 83.

Waiving her rights under the so-called "Dead Man's Act" (Ill. Rev. Stat. 1977, ch. 51, par. 2), plaintiff called Lavenka as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60).

Lavenka testified that on the date of the accident, August 13, 1975, he was employed as a salesman for an alarm company. After making his last business call for the day at the downtown Ramada Inn, Lavenka started to drive home to Palos Heights. His usual route was to take the Dan Ryan Expressway to the Stevenson Expressway and the Stevenson to Route 45 (Mannheim Road). Normally he would drive south on Route 45 until he reached 131st Street.

On the day of the accident and for some months before, construction work had been under way on the "Cal-Sag" bridge supporting the two lanes of southbound traffic on Route 45 just north of the Route 83 junction. The left lane across the bridge was barricaded and a reduced speed zone of 30 mph was in effect for approximately 1,000 feet before the bridge. Photographs of the bridge and its north and south approaches were admitted into evidence and were made part of the record on appeal.

Since he frequently traveled this route, Lavenka was familiar with the construction barricades and knew that at some point before the left lane ended he would have to move from that lane into the single southbound lane over the bridge. He reached the construction area at dusk, about 8 p.m., and estimated that he was traveling 40 to 45 mph. When he was several hundred feet from the first barricade, Lavenka, who was still in the left lane, looked into his rearview mirror to see if there were any cars in the right lane. He saw one car, seven to 12 car lengths behind him. Lavenka turned on his directional signals and, a few seconds after he had seen the car in his rearview mirror, "eased into the right lane." At that same instant he saw that Snedden's Honda was right at his side. Over half of Lavenka's car had crossed over into Snedden's lane when there was contact. The passenger side of Lavenka's Cadillac hit the driver's side of Snedden's Honda. Lavenka estimated that in the three or four second interval between the time he first saw the Honda in his mirror and when the impact occurred, the Honda had traveled approximately 400 to 500 feet. Lavenka estimated that a second or two after impact, the Honda was moving between 60 and 65 mph. After the inital contact, Lavenka drove another 100 to 150 feet. The Honda traveled 200 feet beyond that and came to rest in a gulley north of the bridge. Lavenka identified plaintiff's exhibits 6 through 10 as photographs of the damage to his Cadillac.

After he brought his car to a stop, Lavenka went to check on the driver of the Honda, Snedden, who was lying unconscious on the front seat. Within a couple of minutes Lavenka asked a passing motorist to radio the police who arrived 10 or 15 minutes after the accident. An officer checked Snedden's condition, then called for a fire department ambulance which transported Snedden to Palos Community Hospital. Lavenka then drove home.

After plaintiff testified in support of her claim for pecuniary loss, her attorney tried to elicit her opinion of decedent's driving habits. Defense counsel objected, claiming that evidence of decedent's habits was inadmissible since plaintiff had elected to waive the Dead Man's Act and call defendant as an eyewitness. The objection was sustained. On cross-examination plaintiff admitted that her husband was familiar with the area where the accident had occurred.

Plaintiff then called Dr. L.J. Blakeman, Jr., an osteopathic surgeon who examined Snedden on August 13, 1975, at Palos Community Hospital. When Dr. Blakeman was asked to relate the findings of his examination, defense counsel raised an objection which the trial court sustained. Plaintiff then made an offer of proof that Dr. Blakeman would testify that he and Dr. Di Vincenzo performed surgery on Snedden. In the course of that surgery they opened the skull and found evidence of a brain contusion and laceration. Dr. Blakeman would testify further that injuries observed could have been sustained in a whiplash type of movement of the head. Injuries of this type allegedly would have corroborated plaintiff's theory of the case that defendant "abruptly pulled into the lane of Plaintiff, causing an impact between the two vehicles, thereby causing a movement of the head on the body of the Plaintiff within the car, causing these injuries."

After Dr. Blakeman was excused, plaintiff's counsel expressed his intention to introduce testimony through decedent's daughters of Snedden's careful driving habits. The court ruled that the testimony was inadmissible because there was an eyewitness to the accident. Counsel then made an offer of proof as to what the daughters would say if they had been allowed to testify on that matter. The daughters then testified as to their relationship with their father and his health, activities and hobbies. After reading into evidence the mortality expectancies for the plaintiff and her three children, plaintiff's counsel rested.

In defense Lavenka testified that at no time before the accident occurred did he hear a horn or the squeal of tires. At the same instant Lavenka saw the Honda in the lane next to his, he swerved sharply to the left and applied the brakes. He ran into the barricades on the inner (left) lane and slid 100 feet before stopping on the bridge. After the initial impact, which Lavenka described as a glancing blow, the Honda traveled 100 feet straight south, then veered left into the barricades. The car careened off of a concrete abutment, hit a guardrail, went into a gulley separating the north and southbound lanes, then came to rest back on the highway. Lavenka said that he never lost control of his own vehicle.

On cross-examination Lavenka, using an average car length of 12 feet, estimated that when he first saw a vehicle behind him on Route 45, it was 12 car lengths back. Further cross-examination revealed that in his deposition Lavenka had said he looked in his rearview mirror twice before moving into the adjoining lane, and that his car had gone beyond the bridge and into the gulley. On redirect, Lavenka stated that he brought his car to a complete stop on the bridge and that it was Snedden's car which had gone into the gulley. Finally, ...


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