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Twaddle v. Litchfield





Appeal from the Circuit Court of McDonough County; the Hon. Charles Wilhelm, Judge, presiding.


Rehearing denied July 8, 1983.

This action arises out of an automobile-motorcycle collision which occurred in rural McDonough County. Following a jury trial in the circuit court of that county, a verdict was returned for the defendant. This appeal has been prosecuted by the plaintiff, who seeks a new trial.

On April 9, 1977, the plaintiff, Lyman Melvin Twaddle, was driving his motorcycle south on Candy Lane Road. Riding with him was a passenger, Melodie McGrew. Candy Lane was a two-lane, black-topped road south of Macomb, Illinois, which proceeded generally in a north and south direction. It was straight, with a dip to the north of and near the place of the collision in question.

Three miles south of Macomb's Grant Street, Candy Lane forms a "T" intersection with a road that runs to the west, but not to the east. As the plaintiff approached this intersection on his motorcycle, he was followed by an automobile driven by the defendant, Diane Litchfield (Sayers). Arriving at the "T" intersection, the plaintiff made a right turn toward the west, made a "U" turn on the intersecting road, made a rolling stop, and then re-entered Candy Lane Road going north. As the plaintiff's motorcycle re-entered Candy Lane Road, it crossed the path of defendant's oncoming automobile. The defendant, fearing a collision, applied the automobile's brakes. The application of its brakes caused the automobile to skid into the northbound lane of Candy Lane where a collision occurred between the automobile and the plaintiff's motorcycle.

As previously recounted, a suit was filed, and in the trial which followed the plaintiff advanced the position that he was traveling in his lawful lane of traffic, and that defendant's actions which caused her automobile to skid into the northbound lane of traffic were negligent. In contrast, the defendant advanced the position that her reaction in applying the brakes was a reasonable response to an emergency situation created by the plaintiff's failure to yield, and therefore the resultant skid into the northbound lane was legally excusable.

On appeal, the plaintiff urges that the verdict of the McDonough County jury was against the manifest weight of the evidence. Although the statement of facts previously set forth is somewhat abbreviated, we have nevertheless thoroughly reviewed the record of proceedings below and we cannot agree with the plaintiff that the position advanced by defendant is not supported by credible evidence. Indeed, the evidence presents a close case, and the jury verdict reflects a careful consideration of the contrasting positions of the litigants. None of the cases cited by the plaintiff, Calvetti v. Seipp (1967), 37 Ill.2d 596, 227 N.E.2d 758, Martin v. Miles (1963), 41 Ill. App.2d 208, 190 N.E.2d 473, Nikkinen v. Evans (1967), 90 Ill. App.2d 438, 232 N.E.2d 774, and Graves v. Wornson (1978), 56 Ill. App.3d 873, 371 N.E.2d 692, involve the question of one's conduct when confronted with an emergency where the standard of care imposed by law may be less stringent than in other circumstances. (Borus v. Yellow Cab Co. (1977), 52 Ill. App.3d 194, 367 N.E.2d 277.) Thus, the rule announced in those cases must be distinguished from the instant case.

Another alleged error urged upon us by the plaintiff involves the defendant's failure to comply with the pretrial discovery requests made upon her. In defendant's answers to plaintiff's interrogatories she stated that she had 10 photographs taken by her insurance carrier, eight of the collision site, one of the motorcycle and one of the automobile. Defendant was requested to produce these photographs in her possession. Prior to trial, the defendant produced xerox copies of seven photographs. At the time of trial, the defendant produced seven original photographs taken by her insurance carrier and three slide transparencies taken by her attorney.

As a further part of pretrial discovery, plaintiff requested that the defendant produce all discoverable notes or memoranda relating to the collision. That request was purportedly complied with on March 8, 1979. When the seven original photographs were produced at trial, it was revealed that written on the backs of the photographs were notations concerning the collision scene, the length of the defendant's skid marks, and the exact point of impact. None of these notations were produced on March 8, 1979. The plaintiff's counsel, unprepared for this revelation of newly discovered matter at the commencement of trial, demanded that the defendant stipulate into evidence the substance of the notation concerning the length of defendant's skid marks, or in the alternative, that the court order a continuance to permit the plaintiff an opportunity to subpoena the notation's author. The trial court indicated that it was not adverse to continuing the matter pursuant to plaintiff's demand, and following a recess in the proceedings, the litigants returned to court and entered into the stipulation demanded.

The photographs again became an issue in post-trial proceedings before the court. At that time, the plaintiff directed the court's attention to answers given by the defendant in response to the plaintiff's interrogatories. Since only seven photographs were produced — the remaining three being slide transparencies — and since only seven photographs were taken by the insurance carrier — the slides having been taken by defendant's attorney — it was the plaintiff's contention that the interrogatory was incorrect or that disclosure was incomplete. In order to verify that the unaccounted for photographs taken by the insurance company had not been wrongfully withheld in the pretrial discovery process, the plaintiff subpoenaed the insurance carrier's investigative file as well as it claims supervisor and its claims adjuster.

The defendant objected to this procedure which she characterized as unauthorized post-trial discovery, and dismissed the apparent inaccuracy of the interrogatory response as mere inadvertence. Despite objection, the trial court permitted plaintiff's counsel to question both the claims supervisor and the claims adjuster. The court did not permit plaintiff's counsel to examine the insurance carrier's file; however, the court did impound the insurance carrier's file as maintained by its claims adjuster, and the file of defendant's attorney, for the purpose of inspecting both files in camera. Further, the court ordered those parts of the insurance carrier's "original investigative file" having "anything to do with [the] photographs" to be certified to and produced by an officer of the carrier. Following the trial court's in camera inspection of the impounded files, it denied the plaintiff's post-trial motion which sought a finding that defendant had failed to make a good faith pretrial discovery response.

• 1 Plaintiff now urges that a new trial should be granted because he was denied a continuance upon the revelation of the undisclosed notations and because he was denied the opportunity after trial to examine the insurance carrier's investigative file. With regard to the matter of the continuance, we cannot agree that the trial court denied the plaintiff's request, let alone that it erred in doing so. As previously recited, plaintiff's demand was made in the alternative as follows:

"I would call upon Counsel [for the defendant] at this time to stipulate that if, in view of these circumstances and in view of having been taken by surprise since we have been here in this matter, call upon him to stipulate that * * * if the person who took these photographs was here, he would testify that the skid marks that he found on this photo or exhibit measured 105 feet. In the alternative, I would ask for a continuance of this trial * * *."

The trial court responded that it "wouldn't be adverse to continuing this." A recess was taken and following a recess the stipulation demanded was agreed to on the record. We do not believe justice would be served if the plaintiff here were granted a new trial for the reason that the very stipulation he demanded, albeit in the alternative, was agreed to by the defendant. Moreover, the refusal of a continuance is not prejudicial where the ...

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