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06/30/88 Kenneth Zagorski Et Al., v. Kenneth Zagorski Et Al.

June 30, 1988

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION VIDA R. MACIUKEVICIUS, PLAINTIFF-APPELLEE

v.

KENNETH ZAGORSKI ET AL., DEFENDANTS-APPELLANTS



526 N.E.2d 569, 172 Ill. App. 3d 303, 122 Ill. Dec. 310 1988.IL.1036

Appeal from the Circuit Court of Cook County; the Hon. John J. Crown, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Vida R. Maciukevicius, filed an action against defendants, Kenneth Zagorski and his employer, Stevens Meat Company, after she was injured in an automobile accident in September 1981. The jury awarded her $100,810 in damages but determined that her own negligence had contributed 9% to her injury. The trial court accordingly entered judgment in favor of plaintiff in the reduced amount of $91,737.10.

Defendants appeal, contending that the verdict is against the manifest weight of the evidence; plaintiff's "emotional outburst" warranted a new trial; her attorney's conduct resulted in prejudice to defendants; and the award of damages is excessive.

We affirm.

Background

The incident occurred on September 19, 1981, when the parties' automobiles collided near the intersection of Southwest Highway and Kedzie Avenue in Chicago, Illinois. Both drivers had turned left from Southwest Highway onto northbound Kedzie, a four-lane road, about two blocks before the collision. The right rear bumper of a delivery van driven by Zagorski became locked with the front left bumper of plaintiff's Volkswagen Rabbit. Thus joined, both cars swerved off the roadway over the right-hand curb until plaintiff's car struck a fire hydrant.

The trial testimony conflicted in several respects. In essence, plaintiff claimed that defendant drove his van into her lane without signaling, causing her car to become locked with his van. Of the two northbound lanes of Kedzie, plaintiff stayed in the outermost or righthand lane after turning off of the highway. She first noticed the van when it was alongside her left and slightly in front of her. When defendant's van cut in front of her, she was forced off the road into a fire hydrant.

In contrast, defendant maintained that he never moved out of his lane and that plaintiff must have been attempting to pass his van. At the intersection when he turned onto Kedzie he noticed that a car was in front of him in the inner or left lane of Kedzie and he felt that traffic in general was gaining on him. He did not recall seeing plaintiff's bright yellow car behind him. He felt an initial impact when the two vehicles locked together. His van was forced toward the left into on-coming traffic and then the car dragged the van toward the righthand curb, where he felt a second impact as the Volkswagen struck the hydrant.

A police officer who had spoken to the parties and another witness at the scene of the collision testified that plaintiff had told him that she attempted to pass the van on the right when the bumpers hooked. Defendant had told the officer that he felt an impact and then saw that the plaintiff's car had become hooked with his. The officer concluded that plaintiff had tried to pass on the right and that after the two vehicles had linked, their combined weight had pushed them over onto the curb.

On cross-examination, however, the officer acknowledged that he had investigated over 1,000 accidents since the one in issue. While he had testified from independent recollection that the defendant's van was blue, he admitted being shown photos of the van by defense counsel. He did not remember the color of plaintiff's car. The officer also stated that he had reviewed his police report with defense counsel before trial. The police report was blank in the section labeled "Explanation of Accident," where statements of parties would normally go. The police report also lacked a diagram of the accident, although a space is provided for such depictions.

The police officer finally acknowledged that he could have been mistaken as to what plaintiff had said and that the physical evidence that he observed was consistent ...


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