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03/18/88 Gary Lively, v. Nick Kostoff

March 18, 1988

GARY LIVELY, PLAINTIFF-APPELLEE

v.

NICK KOSTOFF, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

521 N.E.2d 554, 167 Ill. App. 3d 384, 118 Ill. Dec. 272 1988.IL.385

Appeal from the Circuit Court of Madison County; the Hon. George J. Moran, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Gary Lively, brought an action in the circuit court of Madison County to recover damages for personal injuries he sustained when his motorcycle was struck by an automobile driven by defendant, Nick Kostoff. Following a lengthy trial, the jury found in favor of plaintiff and determined that the total amount of damages he had sustained as a proximate result of the collision was $225,000. At the same time, the jury concluded that plaintiff had been 40% contributorily negligent. It therefore reduced his recoverable damages to $135,000. The circuit court entered judgment for plaintiff on this verdict. Defendant's post-trial motion was denied, and this appeal followed.

Four basic issues are presented for our review: (1) whether the circuit court erred in allowing the admission of evidence which showed that defendant had been drinking, (2) whether impeachment by plaintiff's counsel of the sole nonparty eyewitness was proper, (3) whether the police officer who investigated the accident should have been permitted to express his opinion as to the speed of plaintiff's motorcycle at the time of the collision, and (4) whether the circuit court erred when it instructed the jury as to the applicable law. Based upon his analysis of these issues, defendant asserts that he is entitled to a new trial. For the reasons which follow, we agree that the proceedings in this case were not error free. Nevertheless, we have concluded that none of the errors were sufficient to warrant setting aside the circuit court's judgment. We therefore affirm.

The collision which gave rise to this litigation took place on May 19, 1981, at the intersection of Pontoon Road and Stearns Avenue in Granite City, Illinois. It was early evening, between 5:30 and 6 p.m., on what had been a sunny day. At the time of the accident, the sun was approaching the western horizon.

Pontoon Road is a two-lane thoroughfare which runs east to west. It is intersected by Stearns Avenue at a 90-degree angle. Stearns is the point of entry from Pontoon Road into a residential area. There are no traffic controls or signs at the intersection for traffic on Pontoon Road, but the area is straight, level, and free of visual obstructions. The posted speed limit on Pontoon Road at this point is 35 miles per hour.

The evidence showed that on the day in question, defendant stopped at Charlie's Restaurant for "happy hour" on his way home from work. He was there for 20 to 25 minutes and drank two bourbon highballs. Defendant testified that he is 5 feet, 9 inches tall, weighs about 181 or 182 lbs., and is 58 years old. He does not consume moderate to large amounts of alcohol on a daily basis. Defendant had apparently eaten nothing all day, although he thought that he may have snacked on hors d'oeuvres at Charlie's. At the time, defendant was taking "a combination drug, esidrix/serpasil" by prescription for high blood pressure. Medical testimony adduced by plaintiff indicated that esidrix is simply a "water pill," but that serpasil is a blood pressure medication

"which is not used much today in terms of being prescribed for new patients who have blood pressure problems because it has some serious, potentially serious side [effects] including some sedation, which we call central nervous system depression, which is a term that kinda' slows reactions to some extent. And some people who are on it become profoundly depressed because it depletes certain chemicals in the brain which are related to regulation of emotion."

After leaving Charlie's, defendant proceeded home. He had been driving eight or nine minutes and was headed east down Pontoon Road at about 30 miles per hour when he approached Stearns Avenue. He slowed down, activated his left turn signal, and surveyed the area for other traffic. All he observed was an automobile coming the opposite direction down Pontoon Road about 600 feet from the intersection. Believing it was safe to execute the turn, defendant proceeded through the intersection into Stearns Avenue, a maneuver which took about five or six seconds. In the process of making the turn, however, defendant suddenly glimpsed a light out of the corner of his right eye and then felt a flick on his right rear bumper. The light turned out to be the headlight of plaintiff's motorcycle, and the "flick" was caused by defendant's bumper striking plaintiff, who had been heading west on Pontoon Road.

As defendant was completing his turn, he looked over his left shoulder and saw plaintiff sliding along the pavement on the motorcycle. He pulled over along Stearns Avenue, got out of his car, and walked over to the area where he had seen plaintiff sliding. Approximately 140 feet from the intersection, he found plaintiff lying in a ditch with his leg pinned beneath the motorcycle. According to defendant, he spoke with plaintiff at the hospital a day or two after the accident, and plaintiff admitted that he had been going too fast.

Plaintiff testified that just before the collision, he had turned onto Pontoon Road from Village Lane, which is east of Stearns Avenue. Once on Pontoon Road, he headed west towards Stearns at speeds which did not exceed 35 miles per hour. There was no traffic ahead of him, and he saw defendant's car signaling to make a left turn. When he first saw the car, he was not sure whether it was already at the intersection or was still creeping up to it, but in any case, he thought that the car was stopped by the time he was about to reach it. Plaintiff continued along at 30 or 35 miles per hour, but when he was 10 or 15 feet from defendant's car,

"[defendant] just pulled right in front of me. And I, you know, I didn't know for sure what he was gonna' do, whether he was gonna' turn or not. And then all of a sudden, you know, he turned."

According to plaintiff, he applied his brakes, but was unable to stop in time. The right rear bumper of defendant's car was already into plaintiff's lane, and the bumper struck plaintiff's right leg. Plaintiff then lost control of the motorcycle, which rolled over while he was still on it. Plaintiff was apparently hurled along the pavement ...


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