Appeal from the Circuit Court of Cook County; the Hon. Dean
Sodaro, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
This appeal arises out of a personal injury action brought by plaintiff, Judith Sitowski, to recover damages sustained in a three-vehicle collision which occurred in the middle of the afternoon of September 17, 1982. An automobile driven by co-defendant, John Carr, struck plaintiff's subcompact car from the rear and forced her into the oncoming lane of traffic where she was struck by a truck driven by defendant Brian Young, an employee of defendant Buck Brothers, Inc. The accident occurred at the "T" intersection where Oakleaf Drive intersects Route 47, a two-lane highway, in Elburn. The jury found in favor of plaintiff and against all defendants. Buck Brothers and Brian Young appeal from the trial court's denial of their motions for a directed verdict, judgment notwithstanding the verdict and a new trial. We affirm.
At trial, plaintiff testified that she resided on Oakleaf Drive and was familiar with the intersection. On the afternoon of the accident, she was driving a Pontiac Sunbird north on Route 47. She intended to make a left turn onto Oakleaf Drive. Seeing two southbound trucks approaching, she came to a complete stop at the intersection. At that time, the first truck was approximately 100 feet away from her and the second truck was about a block away. Her front wheels were turned slightly to the left and her foot was on the brake. Within one or two seconds after the first truck passed her, she was struck from the rear and her car was pushed a few feet into the southbound lane of traffic. She stated that she was "absolutely not injured" at that point. The passenger side of her vehicle was facing the oncoming truck. She tried to accelerate through the intersection but her engine stalled. The second truck was about 250 to 300 feet away and was "going very fast." She estimated its speed at "65 miles an hour or faster." Her car was in the southbound lane for four to five seconds. During that time, the truck made no attempt to avoid hitting her. As a result of the accident, she suffered serious injuries.
Co-defendant Carr testified in an evidence deposition that he was driving a Buick Century with his wife on the day of the accident. They were traveling north on Route 47. It was drizzling and the pavement was wet. His speed was approximately 40 to 45 miles per hour. He did not see plaintiff's vehicle until just before he hit it. It was completely stopped. He made no attempt to brake or swerve to avoid the collision. The left front of his vehicle struck the rear of plaintiff's car and he went off the road to his right. He did not see the second collision.
Defendant Young testified that, on the day of the accident, he was driving a grain truck in the middle of a caravan of three Buck Brothers trucks. Don Strictland was in front and James Hulke was behind Young. From his truck seat, he could see over the tops of cars coming toward him. He was familiar with the intersection. His speed was approximately 40 miles per hour immediately prior to the accident. He first saw plaintiff when she was approximately 150 to 175 feet in front of him. He did not see her stop at the intersection. He was aware that Carr was behind her but did not know how far behind. Young did not see Carr's vehicle catching up with plaintiff's car or their rear-end collision. As he testified, he "did not see why" plaintiff crossed over into his lane. Plaintiff crossed into his lane approximately 10 feet in front of his truck and impact occurred within one-third of a second. During that time, Young braked, felt his brakes were solid, turned his steering wheel to the right and leaned over on the seat to brace himself. He did not see the collision between his truck and plaintiff. Afterward, his truck went off the road to the right.
James Hulke testified on behalf of defendants. At the time of the accident he was employed as a truck driver by Buck Brothers and also worked part-time as an auxiliary deputy of the Kane County sheriff's department. Hulke stated that he was driving a large tractor-trailer truck which was the third in a three-truck caravan going south on Route 47. He was approximately 275 to 300 feet behind Young at the time of the first collision and he saw both collisions. The time between the two collisions was one-third of a second. After the accident, he identified the driver of the Carr vehicle to the investigating police officer. However, he was not asked whether he witnessed the collision and he did not volunteer the information.
Stafford Meek testified on behalf of defendants. Shortly before the accident, he was traveling south on Route 47 behind Young's truck. Traffic was proceeding at approximately 40 to 45 miles per hour. There were two or three cars and no trucks between himself and Young's truck. Meek stated that there was a semi-truck in front of Young's truck but no other trucks in sight. Meek did not witness the accident because he lost sight of Young's truck when it went over the crest of a hill. Meek also testified that a police officer later identified as Officer Hogle asked him if he witnessed the accident and he said no.
Another witness for the defense, Richard Dobbs, testified that he was traveling in the northbound lane of traffic on Route 47. He noticed Carr because Carr had passed him a mile before the accident. It had not started to rain and the pavement was dry. He did not see the rear-end collision between Carr and plaintiff because he lost sight of Carr about two-thirds of a mile from the scene of the accident. He was approximately 600 to 900 feet behind Carr when he saw a puff of dust and parts flying. He saw plaintiff's vehicle cross the center line directly in the path of Young. The time between the two collisions was instantaneous. At first, Dobbs testified that plaintiff's car was hit in the front end by Young and then came to rest in the middle of Route 47. After viewing photographic exhibits of the accident, however, he admitted that he was wrong and that plaintiff was really hit directly on the passenger side and ended up entirely off the highway. After the accident. Dobbs said he went to the investigating police officer to identify the driver of the Carr vehicle. He told the officer that he witnessed the accident, but he was not asked for details.
Kevin Hogle, a police officer with the Kane County sheriff's department, testified on behalf of plaintiff that he investigated the accident immediately after it occurred and prepared a report which he re-referred to during his testimony. He stated that he had an independent recollection of the accident. It had been raining that day and the pavement was slick. Officer Hogle remembered speaking with Hulke at the scene. Hulke told him that he did not witness the accident because he was driving a truck in front of Young's truck and had already passed the scene of the accident when it occurred. Hulke said he later looked behind him and could not find Young so he turned his truck around and returned to the scene. There, Hulke learned that Young had been involved in an accident. Because Hulke had told him that he did not witness the accident, Officer Hogle did not include Hulke's statement in his report.
Officer Hogle had no independent recollection of speaking with Dobbs and Meek at the scene. However, Hogle stated that he would have asked them whether they witnessed the accident and would have taken their statement in his police report if they had said yes. Because the only notation in his report concerning Dobbs and Meek was that they identified the driver of the Carr vehicle. Hogle stated that both Dobbs and Meek denied witnessing the accident.
Deputy Patricia Pall, another police officer with the Kane County sheriff's department, testified that she took Young's statement at a hospital after the accident and he told her that he saw Carr's vehicle strike plaintiff's vehicle from behind.
Prior to trial, co-defendant Carr made a motion in limine to exclude evidence that Carr passed Dobbs in a no-passing zone prior to the accident and then switched places with his wife after the accident. The motion was granted without objection. After the testimony of Hogle and Dobbs, defendants Buck Brothers and Young sought to modify the order in limine. The trial court refused. At the close of plaintiff's case, defendants made a motion for a directed verdict against their co-defendant Carr, which was denied. At the close of all the evidence, defendants made another motion for a directed verdict against plaintiff, which was also denied. At the close of all the evidence, defendants made another motion for a directed verdict against plaintiff, which was also denied. The jury found in favor of plaintiff and against all defendants. Defendants' motion for a judgment notwithstanding the verdict and for a new trial were denied by the trial court. Buck Brothers and Brian Young now appeal.
They contend: (1) the trial court's failure to grant a directed verdict or a judgment notwithstanding the verdict was an abuse of discretion; (2) the trial court improperly denied their motion for a new trial because the verdict was against the manifest weight of the evidence; (3) the court's exclusion of evidence in its order in limine precluded defendants from demonstrating the error in Officer Hogle's testimony; and (4) they should be granted a new trial because the trial court's failure to direct a verdict against co-defendant Carr resulted in undue prejudice to defendants.
Initially defendants contend that the trial court should have directed a verdict in their favor or have entered judgment for them notwithstanding the verdict under the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. In addition, they also argue that the evidence warranting a directed verdict in Pedrick is sufficiently similar to the evidence in the ...