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Berner v. Kielnik





Appeal from the Circuit Court of Cook County; the Hon. C. Howard PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This is an action to recover damages for personal injuries sustained by plaintiff in a collision involving plaintiff's car and defendant's van. The accident in question occurred at approximately 3:45 p.m. on March 20, 1977, at the intersection of Western Avenue and Roscoe Street in Chicago, Illinois. Western Avenue is a north-south street. Roscoe runs east and west. The traffic is controlled by automatic signals. The jury answered a special interrogatory and returned a verdict against plaintiff finding that defendant was not negligent. The trial court thereupon entered judgment for defendant. Plaintiff appeals from the trial court's judgment as well as the court's order denying his post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The questions for review are: (1) whether the jury's finding is against the manifest weight of the evidence; (2) whether defendant was negligent as a matter of law; and (3) whether defense counsel's comments were improper. For the reasons hereinafter discussed, we affirm.

The record submitted on appeal is incomplete. The transcript of trial testimony begins with defendant's testimony under cross-examination on the second day of trial. Defendant stated that he was traveling north on Western and that he was the first car at the intersection. The traffic light was red. The left turn arrow was not on. *fn1 Defendant stopped at the red light. He stated that he first saw plaintiff's car before he (defendant) reached the intersection when it was north of (approaching) the traffic device. Defendant estimated that plaintiff was traveling at 30 or 35 miles per hour. He said that he saw plaintiff's car again when it was two car lengths away. Defendant saw his green left turn arrow go on and after a regulated amount of time, it went off. When his light turned green, defendant proceeded to make a right turn to go east on Roscoe Street. Plaintiff, who was traveling south on Western Avenue, had also entered the intersection to make a left turn onto Roscoe. Defendant testified that he attempted to maneuver his vehicle on an angle in order to avoid hitting plaintiff. At this point, the vehicles collided. Plaintiff's car was hit on its passenger side.

Next to testify was Richard Buell, plaintiff's friend who had attended an auction that day with plaintiff and who was driving his car from the auction to a tavern where they had planned to meet. Buell testified that he witnessed the accident. He stated that when plaintiff reached the intersection, the traffic light was red and the left turn arrow was not on. Plaintiff was the third car in the left-hand turn lane. Buell was two car lengths behind plaintiff. He said that when the traffic light turned green, the left turn arrow went on. He saw plaintiff proceed through the intersection. Plaintiff was hit when he made a left turn. Buell testified further that the two cars in front of plaintiff had safely made the turn. On cross-examination he stated that the traffic light was green for southbound traffic at the same time that the left turn arrow was green.

David O'Halleran, a traffic engineer who has been employed by the Chicago Bureau of Street Traffic for 13 years, explained how the traffic signals work. He stated that the green left turn arrow at this intersection would remain on for seven seconds. When the green arrow is on to make a left turn, the light for the traffic not turning left is red. He testified on cross-examination that northbound and southbound traffic simultaneously receive either a green light to proceed north or south or a green arrow for left turns. He said that a green light and a green arrow would not be on at the same time.

Plaintiff then testified that as he made his turn, he decelerated his speed to between 10 and 15 miles per hour. He explained that prior to the accident his medical history included stiffness in his neck but because the impact of the collision jolted his neck, he experienced very sharp pains and was advised by a doctor to wear a cervical collar. Plaintiff said that he still had problems with his neck although it was not as stiff and painful now as it had been shortly after the accident. On cross-examination, he acknowledged that he had testified that when he was 100 feet from the intersection he was traveling at 30 miles per hour and that the traffic light was red. When he was approximately 95 feet from the intersection he saw the green left turn arrow come on. Plaintiff decelerated his speed and made his turn. Plaintiff was further cross-examined about his injuries and medical treatment.

Next to testify was Doctor Eric Lake Fischer, who examined plaintiff four months after the accident. Fischer explained the procedure he used to conduct his examination, which included taking X rays and rotating and bending plaintiff's neck. His diagnosis was that plaintiff had an arthritic condition and that his spine had been pushed forward as a result of trauma, which he said can be any form of force applied to the body. After explaining the types of medications that plaintiff had been taking prior to the accident, Fischer testified that these drugs would not affect a person's ability to operate a car or to see and react to things while operating the car. Fischer further stated that an accident or trauma would aggravate a stiff area of the body. On cross-examination, Fischer testified that plaintiff told him that the pain in his neck developed over a period of time subsequent to the accident. Upon further questioning, Fischer stated that based on his examination and plaintiff's previous medical records, plaintiff was presently unable to bend his neck to the same degree that he could before his accident. Fischer was unsure as to whether plaintiff had sustained any head injuries at any time prior to the time of this accident. Defense counsel pointed out, however, that plaintiff's hospital chart showed that three years before the present accident, plaintiff had hit the left side of his face against the handlebar of a motorcycle. Fischer responded that whether there would be trauma to the neck in that instance would depend on the angle of the impact. On redirect and recross-examination, Fischer was questioned about plaintiff's X rays and the condition of his spine before and after his accident. The record reveals that the trial was then continued until 1:45 p.m.; however, those proceedings apparently were not filed. Instead, the record continues with a discussion in chambers between counsel and the trial judge two days later concerning jury instructions.


• 1, 2 Initially, plaintiff contends that the jury's finding is against the manifest weight of the evidence. This contention can be addressed summarily and in this regard, we find the court's holding in Geleto v. Giglietti (1976), 40 Ill. App.3d 226, 352 N.E.2d 1, persuasive of our decision. The court in Geleto determined that:

"[W]e need not consider the manifest weight question because the record filed on appeal does not contain the transcript of the morning session of the trial at which plaintiffs presented their case. When a transcript is incomplete, we are bound to presume that all of the evidence heard by the jury was sufficient to support the verdict." (40 Ill. App.3d 226, 228.)

The absence of a report of proceedings thus deprives a reviewing court of a basis for reaching issues whose merits depend on the omitted matters including, as in the instant case, questions of the sufficiency of the evidence presented at trial. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App.3d 1039, 1042, 389 N.E.2d 182.) Because a complete record was not tendered, we must therefore presume that the omitted evidence supported the jury's verdict. Although a reviewing court will indulge in every reasonable presumption favorable to the judgment or ruling appealed from, any doubt arising from the incompleteness of the record will be resolved against the appellant. (Sandberg v. American Machining Co. (1975), 31 Ill. App.3d 449, 452, 334 N.E.2d 246.) Moreover, a court of review, in determining whether the verdict is against the manifest weight of evidence, must consider not only the verdict of the jury but the fact that the trial judge also saw and heard witnesses, heard arguments of counsel and then denied the plaintiff's motion for a new trial. (Prignano v. Mastro (1965), 61 Ill. App.2d 65, 74, 209 N.E.2d 12.) Accordingly, we find that plaintiff's argument on this issue is without merit.

The absence of a complete record on appeal is also fatal to plaintiff's second contention that defendant was negligent as a matter of law.

• 3, 4 We note at the outset that when two vehicles approach or enter an intersection from differing roadways at approximately the same time, all drivers have a duty to maintain a proper lookout and to use every precaution to avoid a collision, regardless of who has the right of way. (Olson v. Ortiz (1978), 60 Ill. App.3d 787, 789, 377 N.E.2d 350; Ferdinand v. Yellow Cab Co. (1976), 42 Ill. App.3d 279, 284, 355 N.E.2d 547.) The question as to which driver has the right-of-way at an open intersection must be determined by the jury, particularly where considerations of speed and distance are involved and the evidence is conflicting. (Orlandi v. Caraway (1973), 9 Ill. App.3d 628, 631, 293 N.E.2d 337; Pfister v. West (1964), 53 Ill. App.2d 305, 310, 203 N.E.2d 35.) It is also the jury's function to determine whether a driver kept a proper lookout for through traffic (Moss v. Wagner (1963), 27 Ill.2d 551, 555, 190 N.E.2d 305), whether he exercised reasonable care and whether his failure to do so proximately caused the other driver's injury. (Lode v. Mercanio (1979), 77 Ill. App.3d 150, 154, 395 N.E.2d 1014.) Generally, contributory negligence is a question of fact for the jury. (Orlandi v. Caraway (1973), 9 Ill. App.3d 628, 631, 293 N.E.2d 337.) It is well-established, however, that the trial court should enter a directed verdict or a judgment notwithstanding the verdict in those cases in which all the evidence, when viewed in its aspect most favorable to the non-movant, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) In making this determination, the court may not substitute its judgment for that of the jury as to the credibility of witnesses nor may the court determine the preponderance of the evidence. (Roedl v. Lane (1976), 41 Ill. App.3d 1062, 1065, 355 N.E.2d 354.) Contributory negligence thus becomes a question of law only when all reasonable minds would agree that based upon the evidence and the reasonable inferences drawn therefrom in the light most favorable to the non-movant, judgment in the non-movant's favor would not be permitted to stand. Duffek v. Vanderhei (1980), 81 Ill. App.3d 1078, 1085, 401 N.E.2d 1145.

Applying the above to the case at bar, our review of the testimony at trial reveals patently conflicting testimony regarding the cause of the accident. Plaintiff acknowledged on cross-examination that when he was 100 feet from the intersection he was traveling at 30 miles per hour:

"Q: Mr. Berner, this morning, you're telling us that you were about a hundred feet from the intersection, you saw the light change and you were ...

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