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Pace v. Mcclow

OPINION FILED NOVEMBER 3, 1983.

DANIEL B. PACE ET AL., PLAINTIFFS-APPELLANTS,

v.

THOMAS A. MCCLOW, PUBLIC ADM'R OF THE ESTATE OF SCOTT A. PETERSON, DECEASED, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County; the Hon. Richard Weiler, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Daniel B. Pace, Leslie M. Pace, and Rachel Harris, appeal from a judgment, which was entered on a directed verdict at the close of plaintiffs' case, in favor of defendant, Thomas A. McClow, the public administrator of the estate of Scott A. Peterson, deceased.

Plaintiffs sought to recover damages from defendant for injuries they had sustained in an automobile accident. Plaintiffs alleged in their complaint that Peterson had negligently failed to keep a proper lookout while driving the automobile in which they were riding and that he had negligently operated this motor vehicle at a speed greater than was reasonable. They alleged that they were injured as a result of these negligent acts. The trial court, viewing the evidence most favorably to the plaintiffs, found that insufficient evidence had been presented by plaintiffs for a jury to find that Peterson had been negligent. The trial court, therefore, directed a verdict for defendant at the close of plaintiffs' case.

Plaintiffs' raise the following issues on appeal: (1) whether the trial court ruled correctly in directing a verdict for defendant at the close of plaintiffs' case, and (2) whether the trial court ruled correctly on a defense objection which resulted in the exclusion of certain photographic evidence offered by plaintiffs.

Only the evidence relevant to the issues raised on appeal will be set out.

Carl Olson, a former State Trooper, testified that while he was employed by the State police he investigated an automobile accident on northbound I-57 near Flossmoor Road at approximately 2:30 a.m. on January 17, 1977. When he arrived at the scene, he found a Datsun, the car in which plaintiffs were riding, sitting in the middle of the northbound lanes with extensive front end damage. No other vehicle was found. Olson found two pieces of iron at the scene. One was 30 feet in front of the car while the other was 50 feet in front. No skid marks were found. Olson testified that the pavement was dry, the sky was clear, and the road was straight and level. He testified that there were 50 foot lights on either side of the highway.

Olson also testified that plaintiffs' exhibit No. 3, a photograph, was a fair and accurate portrayal of Flossmoor Road at I-57 at night. He testified that another photograph, plaintiffs' exhibit No. 4, was a fair and accurate representation of I-57 approaching I-80 as it was in 1977. These exhibits were denied admission into evidence on defendant's objection.

Trooper James Collier's testimony corroborated Olson's testimony concerning the weather conditions and physical setting. Trooper Collier testified that the pavement was dry and that it was a clear night. He stated that the roadway was straight and level and lighted by mercury vapor lights. When he arrived at the accident scene, there was no one there who witnessed the accident.

Richard Ferrington testified for plaintiff that he was a tow truck operator who had been called to the accident scene. He testified that there had been light snow on the night of the accident and that the pavement was slick that night.

Dr. James Lawrence Frost testified for plaintiffs that he was a forensic pathologist who examined Peterson's body and the car in which Peterson and plaintiffs had been riding. He rendered an opinion that Peterson was behind the wheel of the car at the time of collision because Peterson had injuries, which in Dr. Frost's opinion, had been caused by Peterson's body hitting the steering wheel. It was also his opinion that Peterson's right foot was firmly upon the gas pedal at the time of impact. This opinion was based upon his finding an imprint, which matched the configuration of the gas pedal cover, in the bottom of Peterson's right boot. This configuration was different from the configuration of the brake and clutch pedal covers.

James Stannard Baker, an accident reconstruction expert, gave an opinion based on the facts of this case that the car driven by Peterson crashed into the rear of a semitrailer. He based this opinion on the fact that the iron parts found on the roadway were "typical of the rear bumpers that are put on semi trailers * * *," although he later admitted that that kind of bumper was also put on trucks other than semis, but "not very often." He gave his opinion that this semitrailer truck was moving at the time of impact, based on the location of the parts found on the roadway and the nature of the marks left by the semitrailer truck wheel on the car. His opinion was that the semitrailer truck was moving forward at the time, because the car bumper was pulled up rather than down. He rendered an opinion that the car was traveling 25-35 miles per hour faster than the semitrailer truck at impact and that the after collision speed of the car and the truck was 40-50 miles per hour.

On cross-examination he gave his opinion that the semitrailer truck's speed at collision was 40-50 miles per hour. This speed was calculated based on the relative weights of the vehicles. He estimated that the Datsun weighed about 2000 pounds and determined the 40-50 miles per hour speed of the semitrailer truck by using a possible range of weights for the truck of 30,000 to 80,000 pounds. This range was based on what the truck could have weighed empty to its possible loaded weight. He stated that he did not know the actual weight of the semitrailer truck and that this was the first time he had ever done such a calculation. He admitted that in his deposition he had said he could not determine the speed of the semitrailer truck at the time of collision but that he had developed the formula for making such a calculation during the two days before he testified.

Other evidence was presented, but it is not relevant to the issues raised on appeal. None of the plaintiffs, who were injured, could recall the accident, nor did anyone else testify that they witnessed the accident. At the close of plaintiffs' case the trial court directed a verdict for defendant.

Plaintiffs maintain that the trial court improperly directed a verdict for defendant at the close of plaintiffs' case. They contend that the evidence presented was sufficient to present a prima facie case of negligence. They maintain that the evidence was sufficient for the jury to conclude that Peterson was driving in ...


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