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Chew v. Graham

OPINION FILED MARCH 12, 1984.

CASEY CHEW, PLAINTIFF-APPELLEE,

v.

WEBSTER GRAHAM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Allen A. Freeman, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After an automobile collision at an intersection, Casey Chew (plaintiff) brought this action against Webster Graham (defendant). A jury found defendant was 97% negligent and awarded damages to plaintiff. Defendant appeals.

Plaintiff was driving west on 76th Street. As he approached the intersection with Morgan Street, he drove approximately 20 to 25 miles per hour. He saw his traffic light was red. He braked and slowed to 15 miles per hour. The light changed to green. He increased speed up to 20 miles per hour and proceeded through the intersection. He saw another automobile coming south on Morgan. He observed that this car was not going to slow down or stop. Plaintiff applied his brakes, blew his horn and stopped in the intersection. The other car collided with plaintiff's bumper and the front of his car.

Plaintiff called James Gordon. He testified he was driving north on Morgan and made a right turn to go east on 76th Street. He saw defendant's car proceeding south on Morgan. As Gordon proceeded on his turn, his traffic light changed from green to yellow and then to red as he turned. Gordon looked through his rearview mirror. He saw defendant's car coming through the intersection. He heard brakes. He saw defendant's car hit that of plaintiff. He stated that at the time of impact the light was green for westbound traffic on 76th Street. Gordon saw plaintiff's car spinning about and saw defendant's car cross the street to strike a fireplug on the southwest corner.

Gordon was fully cross-examined by counsel for defendant. No restriction was imposed by the trial court. When specifically asked by defense counsel about the change in his light as he turned, Gordon specified, "I was turning on the yellow."

Defendant called Jerry Williamson. Williamson was walking north on the west side of Morgan. He intended to cross 76th Street. The traffic light was green for traffic on Morgan. The pedestrian "Walk" signal was on. The witness saw plaintiff driving west on 76th Street when plaintiff was a "couple" of car lengths from the intersection. Plaintiff was driving at a speed in excess of 30 miles per hour. The witness also saw defendant's car going south at 15 to 20 miles per hour. Plaintiff's car struck defendant's car broadside. Plaintiff's car spun around and stopped in the middle of the intersection. Defendant's car struck the fire hydrant on the southwest corner.

Williamson testified on cross-examination he recognized the defendant as a customer. Williamson works in a store where defendant bought sandwiches. Williamson was being paid for his "time" in court. He spoke to defendant concerning this accident several times. He went to the office of defendant's attorney with defendant and signed a statement in defendant's presence. At the time of the collision, Williamson was south of his home which was six or seven houses south of the intersection. He conceded his written statement which said he saw defendant's car spin about in the center of the intersection was "wrong."

Defendant testified he was traveling south on Morgan about 100 feet from the traffic signal. This light was green for him. He focused his eyes on this light on the northwest corner. He looked to see if any traffic was heading west. He did not see plaintiff's car prior to the impact. Plaintiff's car collided with the driver's side of defendant's car.

Defendant's attorney told the trial court he had one more witness who would come in "tomorrow morning." The conference on instructions was completed. Next morning, James Gordon appeared in the courtroom pursuant to a subpoena by defendant. Defendant attempted to call Gordon for additional examination. After hearing argument of counsel, the trial court denied additional testimony from Gordon. However, the trial court permitted examination of the witness by defendant's counsel out of the presence of the jury, limited to new material. Counsel for defendant questioned Gordon regarding the color of the traffic light as Gordon made his right turn eastbound. Gordon testified the light was changing as he made his turn and was green for plaintiff when Gordon's turn was completed. Counsel for defendant had a prior written statement given by Gordon which he attempted to use for impeachment. In this statement, Gordon stated the light was changing as he cleared his turn. The trial court expressed the opinion that this statement was not impeaching. The case then proceeded to final argument and verdict.

The only contention raised in defendant's brief is that the trial court erred in refusing to permit defendant to recall the witness Gordon for further cross-examination. This witness was originally called by counsel for plaintiff and testified on direct examination. He was fully cross-examined by counsel for the defendant at that time and dismissed. The request for additional examination of this witness by defendant came, in effect, after the close of testimony but before defendant had formally rested. Counsel for defendant desired to recall Gordon as his witness but only for the purpose of impeaching him.

In our opinion, the legal principles governing this situation are clear and established. The rule is well stated in Haas v. Tomaszek (1978), 56 Ill. App.3d 656, 660, 371 N.E.2d 1240:

"It is within the discretion of the trial court to permit or deny a party's request to recall a witness for further cross-examination, and the trial court's determination in this regard will not be disturbed unless there has been an abuse of discretion. [Citation]."

In this regard, Haas cites Schutt v. Terminal Railroad Association (1967), 79 Ill. App.2d 69, 76, 223 N.E.2d 264. Schutt is also cited for the identical conclusion in Rogus v. Continental Illinois National Bank & Trust Co. (1972), 4 Ill. App.3d 557, 560, 281 N.E.2d 346.

As a matter of historical information, it is interesting to note that this principle regarding the authority of the trial court to conduct the trial was strongly established by the supreme court many, many years ago. In Cal Hirsch & Sons Iron & Rail Co. v. Coleman (1907), 227 Ill. 149, 154, 81 N.E. 21, the rule was stated that the right to recall a witness for additional cross-examination "is largely within the sound discretion of the trial ...


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