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03/18/87 Richard G. Rutter Et Al., v. Carlyle L. Gemmer Et Al.

March 18, 1987

RICHARD G. RUTTER ET AL., PLAINTIFFS-APPELLANTS

v.

CARLYLE L. GEMMER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

505 N.E.2d 1308, 153 Ill. App. 3d 586, 106 Ill. Dec. 517 1987.IL.336

Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

APPELLATE Judges:

Justice Woodward delivered the opinion of the court. Lindberg, P.J., and Inglis, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD, Plaintiffs, Richard and Carol Rutter, appeal from an order of the trial court granting defendant, James E. Curry's motion for summary judgment.

Plaintiffs brought suit against defendants, Curry and Gemmer, seeking damages for personal injuries and loss of consortium due to an automobile accident involving plaintiff, Richard Rutter, Curry, and Gemmer. Plaintiffs entered into a settlement agreement with Gemmer, who was then dismissed from the suit.

The complaint alleged that Richard Rutter was westbound on East Main street (also known as Route 64) at its intersection with 38th Street in St. Charles, Illinois. Rutter was stopped at the intersection to make a left-hand turn. Gemmer, who was also proceeding westbound on East Main Street, struck the back end of Rutter's automobile, forcing it into the eastbound lanes of traffic, where it was struck by an automobile driven by Curry. The complaint alleged that Curry was negligent in failing to decrease his speed so as to avoid the collision, in violation of section 11-601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95 1/2, par. 11-601), in failing to keep his automobile under proper control, in failing to keep a proper lookout, and that Curry's negligence was a proximate cause of the second collision and Rutter's injuries.

Curry filed a motion for summary judgment. In the motion, Curry relied on certain excerpts from the depositions of Rutter and Curry and various witnesses. Curry relied on the following from Rutter's deposition:

"Q. Can you tell me at all as you sit here today, sir, what, if any movement that second vehicle made before the impact occurred with your vehicle?

A. No, sir, I can't tell you . . . . . .

Q. Do you have any opinion as to the speed of the second vehicle at the time the impact occurred?

A. Only that there were -- it's 55 miles an hour there and it was in the lane of traffic so I would imagine it was between 45 and 55. I really don't know.

Q. You don't recall observing anything sporadic about the driving of the second vehicle that you hit then, I take it?

A. No, sir, I don't."

Curry relied on the following from witness Gregory J. Hurdle's deposition:

"Q. Did the brown Ford (Rutter's automobile) go at an angle into the eastbound lanes?

A. Yes.

Q. Could you tell us the speed of the white stationwagon [Curry's automobile] when you first saw it?

A. Those eastbound lanes seemed like they might have been going a little slower, maybe 45, because it seemed to be heavier on that side.

Q. But the white stationwagon in particular, could you form an estimate as to its speed when you first saw it in the eastbound lanes?

A. I'd say 45.

Q. Now, was there a collision between the white stationwagon and the Ford?

A. Yes, the Ford hit the wagon. . . .

Q. Can you describe the sound that you heard?

A. Just screeching and metal -- screeching tires and metal contact.

Q. Could you determine whether or not the white stationwagon applied its brakes prior ...


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