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Joseph v. Schwartz

OPINION FILED MAY 18, 1981.

ALBERT JOSEPH, PLAINTIFF-APPELLEE,

v.

SELWYN SCHWARTZ, DEFENDANT-APPELLANT. — (JOSEPH J. BRENNAN ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM B. KANE, Judge, presiding. MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 22, 1981.

Albert Joseph (plaintiff) brought suit against Joseph Brennan, Edward Baron, Yellow Cab Company, and Selwyn Schwartz (defendant), for personal injuries arising from a three-car collision on the Kennedy Expressway. Defendant was driving the front car. Robert Lynch, passenger, sat on the right side of the front seat. The second car was driven by Joseph Brennan. The third car, a taxicab, was driven by Edward Baron. Plaintiff was a passenger in the cab.

The initial collision was between the front of Brennan's car and the rear of defendant's car. There was another collision between the front of the cab and the rear of Brennan's car. The jury awarded $75,000 to plaintiff from all four defendants. Only defendant appeals.

Plaintiff testified that at 6 or 6:30 p.m. on January 18, 1974, he was a passenger in a Yellow Cab driving east in the right lane of the Kennedy Expressway near Mannheim Road. It was dark, cold, and wet. Traffic was heavy. He was seated on the right-hand side of the back seat of the cab. The light in the cab was on, and plaintiff was reading a newspaper.

Plaintiff first testified the cab "was going fast * * * 50, 55, 58, something." At one time he said it was "45, 50, 55, 52" miles per hour. Later he stated the highest estimate was 60 or 65 miles per hour but not 30, 35, or 40. Plaintiff "noticed a slacking in the speed of the vehicle" and "looked up." Plaintiff testified, "We were coming onto a car. When I looked it was about 80, 90, 100 feet ahead of us." There was a "sharp discelleration [sic] just seconds prior to the impact." In seconds "we hit another car." The lowest speed at the time of impact was 45 miles per hour. Plaintiff stated, "I lurched forward, my face right under my nose hit the * * * sliding window * * *." His "forearms had gone across [his] right knee and [he] was driven up against that wall * * *." Plaintiff stated, "I saw blood and three teeth in the palm of my right hand." His right knee and left elbow were also injured. On cross-examination plaintiff stated, "I was aware of what I considered his high excessive speed in driving even though I didn't say anything."

Defendant was called as a witness under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60). Defendant testified that on January 18, 1974, between 6 and 7 p.m., he was driving eastbound on the Kennedy Expressway west of Mannheim Road. He had passed an exit lane which led to Mannheim Road south. The closest entrance onto the expressway was farther east from Mannheim Road. There were two lanes and defendant was in the right lane. There was traffic to the left and in front of him. The closest car in his lane was "perhaps eight car lengths or so" or about 80 to 100 feet ahead. He was beginning to gain on that car.

Defendant testified he felt two collisions. Before the first impact he was driving at 35 or 40 miles per hour. He saw the brake lights of the car in front of him go on, "so I slightly touched my brake lights to discellerate [sic]." He stated, "I know I had touched my brakes, but I don't know whether my foot was still on the brakes at the time of the accident or the impact." He traveled 30 feet before the impact. When the first collision occurred, he was going 25 or 30 miles per hour. He did not know the distance between his car and the car in front of him, but he did not "think it was appreciable * * *." After the first collision, he "had the brakes on." A second or two separated the two collisions. At the time of the second collision, his car was going 1 to 10 miles per hour. He went 15 or 20 feet between the collisions. He did not see the car that was in front of him "at any time following the collision."

Brennan's attorney cross-examined defendant. Defendant testified the car in front of him was not stopped and he had no opinion as to how fast that car was going. Defendant's car was not damaged. The front of Brennan's car was not damaged, but the rear fender and trunk were damaged. The front of the cab was severely damaged. Defendant also stated he pushed the brake pedal down about half an inch.

The attorney for Baron and Yellow Cab cross-examined defendant. Defendant testified Robert Lynch was a passenger in defendant's car at the time of the accident. Defendant did not know the posted speed limit but at his deposition he stated he believed it was 50 miles per hour. He would turn off the expressway a "half a mile or so" past the point of the accident. He was about three or four car lengths southeast of the exit ramp. He stated, "[B]etween one to two city blocks farther east of where I applied my brakes was there traffic funneling into the Kennedy." He stated he applied his brakes at one point harder than when he "touched the brakes after the first collision." Then he moved approximately 10 feet until he felt the second impact.

Joseph Brennan was called by plaintiff as a section 60 witness. He testified he was traveling in the right lane next to the exit lane on the Kennedy Expressway. He was going to exit in three-fourths of a mile and was going 40 miles per hour. He looked over to the right for a second. At this point Brennan's car was six car lengths behind defendant's car. He testified, "[T]he brake lights on the car in front of me were on, and I immediately applied my brakes and the car moved along, and the braking action was completed and because of the wet conditions, I slid into the car in front of me and made contact." Brennan's car traveled six lengths. He stated defendant's brake lights "couldn't have been [on] too long because they weren't on when I was turning to the right, and when I turned back, they were on." He "would think" defendant pulled in front of him while he was looking away. He knew there was a car "quite a distance" behind him.

Brennan also testified, "I wanted the car to stop as quickly as possible, so I put the brakes on. I didn't tap them, I put my foot on the brakes, but not in a wild situation." He said as far as he could remember, defendant's car was not moving when the cars made contact. At the time of impact, Brennan's speed could have been 2 to 5 miles per hour. Defendant was 100 to 300 yards from the entrance ramp and there was traffic coming onto the road. Brennan did not observe any traffic in the left lane attempting to turn in front of defendant. Brennan "was thrown rather violently forward * * *." His "glasses flew off, the ashtray came out of its holder, the lighter came out * * * and there was a great deal of noise, breaking glass, etc." There was no damage to the front of his car. Damage to the rear approximated $1000.

On cross-examination Brennan stated before he glanced to the right, seven car lengths separated the two cars and afterwards, six car lengths separated them. He could not say defendant's car was completely stopped, "but it had to be moving very slowly; I have to assume it was stopped." Brennan stated, "The braking action stopped, but the car continued to move." He also said the highest speed he ever maintained was 40 to 45 miles per hour. He "slid into it" and then he was struck.

Edward Baron was called under section 60. He drove the cab in the right lane. It was raining lightly and the road was wet. The light on in the cab did not interfere with his ability to see through the windshield. When he first saw Brennan's car, Baron was traveling about 40 miles per hour and Brennan about the same. Brennan's car was 100 feet in front of the cab. Defendant was 50 to 75 feet in front of Brennan. Baron saw defendant apply his brakes and start "to slow rapidly." Baron then applied his brakes. One-half second later he saw the brake lights on Brennan's car go on. Brennan's car struck defendant's car and one or two seconds later the cab "skidded and struck Mr. Brennan's car." Defendant did not make an emergency stop. At impact Baron was traveling at 20 or 25 miles per hour. Whether Brennan's car at that time was moving "would be very difficult to tell." The stopping of the cab was influenced by the wetness of the pavement. The hood, grill, and fenders of the cab were damaged and the radiator leaked.

Baron said in cross-examination he knew there was traffic in front of Brennan's car but he did not pay special attention to defendant's car. Traffic was 100 feet in front of Brennan's car before defendant's brake lights went on. He said, "I saw * * * the space diminishing between his car and the front car and then you could tell it was an impact, but the car just stopped once it hit Mr. Schwartz's car." He saw Brennan's car make an abrupt ...


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