APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
524 N.E.2d 939, 170 Ill. App. 3d 505, 120 Ill. Dec. 757 1988.IL.633
Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.
JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD
Plaintiff, Peter Cairns, Sr., as administrator of the estate of Peter Cairns, Jr., deceased, appeals from the judgment of the circuit court of Kane County entered on the jury verdict in favor of defendant, Steven R. Hansen, and against plaintiff. This case involves a wrongful death action arising out of a collision between an automobile driven by defendant and a motorcycle driven by plaintiff's decedent.
Plaintiff raises the following issues on appeal: (1) whether the trial court erred when it refused to allow the introduction of evidence of the decedent's careful habits; (2) whether the trial court erred when it refused to allow the introduction of evidence to rebut the presumption of the decedent's intoxication which arose from the .124 alcohol content of his blood, deemed admitted following plaintiff's failure to answer defendant's request to admit; (3) whether the trial court erred when it allowed defendant's instruction No. 17 regarding intoxication where such instruction was neither read nor given to the jury; (4) whether the trial court erred when it limited plaintiff's cross-examination of defendant's expert toxicologist; and (5) whether the trial court erred when it refused to allow diagrams, which had previously been admitted into evidence, to be taken into the jury room during their deliberations.
On July 5, 1982, at approximately 1 a.m., plaintiff's decedent was travelling on his motorcycle with a passenger southbound on Route 25 towards its intersection with Iroquois Street in the City of St. Charles. Immediately prior to the accident, the decedent and his passenger travelled back and forth on Route 25 in front of Michael and Linda Haller's residence, which is located three houses north of Iroquois Street on Route 25. There is conflicting evidence that he was travelling at the speed limit or up to 40 miles per hour the last time he passed the Haller residence, although there was impeachment evidence that he was travelling at 45 or 50 miles per hour. The posted speed limit was 35 miles per hour.
At that same time, defendant was travelling northbound on Route 25 and was attempting to make a left-hand turn onto westbound Iroquois, when the collision between his automobile and the decedent's motorcycle occurred. Defendant testified that he never saw the motorcycle before the collision. He was travelling at about 10 miles per hour. The impact caused both the decedent and his passenger to be thrown from the motorcycle and killed. The force of the impact was so great that the decedent's body peeled back the top of defendant's automobile and was found in the backseat, and both the decedent's motorcycle and defendant's automobile were demolished.
Officer Charles Parker of the St. Charles police department, and prime investigating officer of this incident, conducted the investigation. Officer Parker made numerous measurements with regard to the location of the vehicles, the debris from the accident, and a gouge in the roadway. He, subsequently, prepared a diagram, which was not drawn to scale, but accurately depicted the scene, with the measurements that he had made. A large percentage of the debris from the accident was found in the southbound lane of traffic on Route 25. Further investigation revealed that the motorcycle's headlight was on at the time of the accident.
According to Officer Parker, at the time of the accident there was a dip in the roadway, just north of the accident site on Route 25, causing a southbound vehicle's lights to disappear from view for a fraction of a second when that vehicle travelled at a speed in excess of 50 miles per hour. There is conflicting testimony regarding how fast the decedent was travelling just prior to the collision. Linda Haller, a friend of the decedent's and an eyewitness to the events leading up to the accident, testified for plaintiff and stated that the decedent "was not going over 40." Under cross-examination, however, Mrs. Haller conceded that, during a deposition taken in 1985, she did state that she could not estimate the decedent's speed. Michael Haller, Linda's husband and the decedent's friend, also witnessed the events leading up to the incident. Mr. Haller testified that, at the time of trial, he could not estimate the decedent's speed. However, Mr. Haller had previously told Officer Parker that the decedent was going 45 to 50 miles per hour.
At approximately 4 a.m., on July 5, 1982, the Kane County coroner withdrew a sample of blood from the decedent's heart and tested it for alcohol. The blood was found to contain an alcohol concentration of .124.
Prior to trial, defendant's attorneys filed and served upon plaintiff's previous attorney a request to admit facts and genuineness of documents which stated:
"1. A blood alcohol test was performed upon Peter Cairns, Jr., on or about 4:00 a.m. on July 5, 1982, by Kane County Coroner, Mary Lou Kearns.
2. The tests upon the blood drawn from Peter Cairns, Jr. for the purpose of determining the extent of any alcohol in his system were performed by the ...