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Coffey v. Hancock

OPINION FILED MARCH 6, 1984.

JOHN COFFEY, AS FATHER AND NEXT FRIEND OF JOHN F. COFFEY, INFANT, PLAINTIFF-APPELLANT,

v.

DALE E. HANCOCK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Will County; the Hon. Charles P. Connor, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Plaintiff, John F. Coffey, was five years old on June 24, 1978, when he drove his bicycle out of a driveway onto Old Wolf Road and into the path of an automobile driven by defendant, Dale Hancock. The child suffered serious personal injuries as a result of the collision that occurred. This suit, sounding in negligence, was initiated on young John's behalf by his father, also named John Coffey. A jury trial was held in the circuit court of Will County, and a verdict in favor of the defendant was returned. Judgment was entered thereon, and the plaintiff's motion for a new trial was denied. This appeal by plaintiff followed. We affirm.

Before addressing the issues on appeal, we must dispose of defendant's "motion to strike appellant's brief and to dismiss appeal." The motion was spawned by the abbreviated format of plaintiff's "statement of facts" from which plaintiff proceeded to argue four major issues. Specifically, the "statement of facts" as presented by plaintiff consists of the following recitation:

"On June 24, 1978, at approximately 12:08 P.M., JOHN F. COFFEY, an infant of the age of five years, was riding his bicycle along with one of his friends. COFFEY rode his bicycle out of a driveway and entered Old Wolf Road, a paved public street running north and south within Will County, Illinois. At the same time, the Defendant, DALE E. HANCOCK, was driving his 1973 Ford automobile in a northerly direction along Old Wolf Road. The Defendant's automobile struck JOHN F. COFFEY causing various physical injuries to JOHN F. COFFEY. In his attempt to stop, the Defendant's automobile left skid marks on Old Wolf Road of approximately 60 feet in length.

As a result of the collision, JOHN H. COFFEY, as father and next friend of JOHN F COFFEY, brought this action alleging that the Defendant, DALE HANCOCK had been negligent in causing the collision. The cause went to trial and the jury, after hearing the evidence, rendered a verdict for the Defendant. The trial judge entered the judgment on the jury verdict from which this appeal is taken by the Plaintiff."

The issues plaintiff asks us to review are: "(1) whether the trial court ruled correctly on objections to the admission of the reconstruction expert testimony; (2) whether the trial court ruled correctly on objections to the improper questioning of an expert witness; (3) whether the jury was properly instructed on the law of comparative negligence; and (4) whether the plaintiff was unfairly prejudiced by certain remarks made by the Defendant's counsel during his closing argument."

• 1 Defendant's motion makes two cogent points: that the recitation of facts falls short of the requirements of Supreme Court Rule 341(e)(6) (87 Ill.2d R. 341(e)(6)); and that this court is not a depository in which an appellate may dump its arguments without factual foundation in hopes that we will sift through the entire record to find support for a determination favorable to appellant's position. Suffice it to say, we are a tribunal of justice and are not inclined on this occasion to grant the defendant the severe sanctions he seeks by way of relief. We elect not to deprive the parties-in-interest of the benefit of our views on the substantive issues. Consequently, we are denying defendant's motion which was taken with the case.

As part of his case in chief, plaintiff's counsel called the defendant as the sole eyewitness capable of testifying to the circumstances surrounding the 1978 accident. Hancock testified that on the date of the accident, around noon, he was traveling from his home on Cleveland Road in Mokena to a friend's home, also in Mokena. The evidence established that the day was warm and clear and the pavement was dry. Hancock proceeded west along Cleveland Road to the intersection with Old Wolf Road, and then north. Hancock estimated that his speed was 5 to 10 miles per hour on the turn, although he did not recall having looked at his speedometer at any point immediately prior to hitting the minor plaintiff.

Deputy Frederick Osborne of the Will County sheriff's office testified that he was called out to investigate the scene of the accident on June 24, 1978. Osborne had served with the sheriff's office for 10 1/2 years and had received training in accident reconstruction at Northwestern University's Traffic Institute. Osborne marked the scene, took measurements and directed the evidence technician to take several photographs. Osborne described the road surface as a tar-and-chip composition. The road width varied between approximately 17 to 18 feet, and a 4% downgrade in the road was noted between the point where Hancock entered Old Wolf Road and the point of impact with the minor plaintiff. It was determined that Hancock's car had left 60 feet of skid marks. The rear of the vehicle had yawed to the left approximately 15 feet after entering the skid and there was an approximately three-foot deviation between the front wheel tracks and the rear wheel tracks where the skid marks stopped. Osborne was not asked on direct examination whether the defendant's speed was determinable on the basis of the skid marks he left.

In cross-examination, however, Osborne testified that at the traffic institute he had learned a formula for determining the speed of a vehicle by examining skid marks. The mathematical formula required inclusion of a figure known as the "drag factor." The drag factor, according to Osborne, was determinable by conducting a test stop at certain speeds with an identical car operated under the same conditions as existed during the accident in question. In the instant case, the drag factor had not been determined by him because the policy of the sheriff's office was to use their staff to perform the tests only in fatal accident cases. Finally, in cross-examination, Osborne stated that the traffic institute taught its trainees how to determine the drag factor without conducting like-circumstances tests as well. Osborne stated that he did not have a degree in engineering. He was not asked to give the formula for determining the drag factor, nor was he asked to give his opinion as to the speed of defendant's car based on his observations.

Over the objections of plaintiff's counsel, the trial court permitted defendant to introduce expert testimony of Williard A. Alroth, a consulting traffic engineer, on the question of the speed of defendant's vehicle immediately prior to the accident. Although Alroth's qualifications as an expert accident reconstruction witness were not challenged, plaintiff's counsel argued that the expression of his opinion of the defendant's speed would invade the province of the jury. The trial judge ruled, however, that Alroth could testify because the judge was not sure that lay jurors could interpret the significance of 60 feet of skid marks.

Alroth testified that he had reviewed photographs of the scene of the accident and had visited the scene itself the morning he was called to testify to take various measurements and observe the road surface. Alroth described the composition of the road as asphalt concrete, a mixture of stone aggregate and tar bitumen material. Alroth further explained that in this case the skid markings depicted in the photographs represented not only the tearing away of rubber particles from the vehicle's tires, but that the friction between the braked tires and the road surface had created sufficient heat to melt some of the tar in the road surface, causing it to act as a lubricant, and appearing in the photographs as the darker markings. The melting tar phenomenon contributed to the vehicle's decreased ability to come to a halt while in the skid.

Alroth's examination of the scene and the photographs of the defendant's car and tires indicated that the braking system had not failed and that the tire treads were good and did not contribute as a factor in causing the skid or inability to stop prior to impact. Based on his analysis, Alroth derived a range for the drag factor of .5 to .6 and applied the formula to reach his opinion that the defendant's vehicle was traveling between 29 and 32 miles per hour when the brakes were applied. Alroth testified that once the wheels were locked and the car was in the skid, any attempt to veer the car to the left or right would be ineffective because the car would propel forwards out of the driver's control. Alroth explained that the yawing effect demonstrated by the skid marks in this case could have been caused by the crown in the road and the defendant's position near its center as he skidded to a halt.

It is within the context of the foregoing facts of record that we consider the plaintiff's first issue on appeal — whether the court's admission of Willard Alroth's testimony at trial constituted reversible error. Plaintiff argues that the expert's expression of an estimated speed consistent with that approximated by the defendant unfairly bolstered the defendant's own statement and invaded the fact-finding province of the jury. Plaintiff relies primarily on two recent cases in which accident reconstruction expert witness testimony was determined ...


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