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02/24/89 Harry R. Ketchum, v. Dura-Bond Concrete

February 24, 1989

HARRY R. KETCHUM, PLAINTIFF-APPELLANT

v.

DURA-BOND CONCRETE, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1364, 179 Ill. App. 3d 820, 128 Ill. Dec. 759 1989.IL.243

Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

This case arises out of two collisions involving three vehicles occurring on Route 14 in Crystal Lake, Illinois, on Sunday, October 14, 1984, at approximately 9:50 a.m. Plaintiff, Harry Ketchum, appeals from the trial court's granting of defendants' motions for directed verdicts.

Plaintiff sued Dorothy Curran (Curran), Douglas Daugherty (Daugherty), Dura-Bond Concrete, Inc. (Dura-Bond), and Russell Keck (Keck), for damages arising out of the accident. Plaintiff sued Dura-Bond, Daugherty's employer, under the theory of respondeat superior. Prior to the jury trial, plaintiff settled with defendant Keck. At trial, after plaintiff concluded his case, the trial court granted defendant Curran's motion for a directed verdict. The court denied motions by defendants Daugherty and Dura-Bond for directed verdicts.

Daugherty and Dura-Bond did not present any testimony but offered photographs into evidence. Plaintiff offered no rebuttal. At the trial's Conclusion, Daugherty and Dura-Bond renewed their motions for directed verdicts, which were again denied by the trial court. After 11 hours of deliberation, the jury informed the trial court it was unable to reach a verdict; the court declared a mistrial.

A motion to reconsider the court's denial of Daugherty's and Dura-Bond's motions for a directed verdict was granted by the trial court on February 24, 1988. At that time, the court also reconfirmed its granting of Curran's motion for a directed verdict and entered judgment on her behalf.

On March 21, 1988, the trial court entered an order directing verdicts on behalf of Daugherty, Dura-Bond, and Curran. This appeal followed.

On appeal, plaintiff argues that (1) the trial court erred in granting defendant's motions for a directed verdict; and (2) the trial court erred in not permitting plaintiff to present expert testimony.

OFFICER THOMAS KOUKALIK'S TESTIMONY

Officer Thomas Koukalik testified that on the date of the accident, he was a patrolman for the Crystal Lake police department. He was sent to the accident scene to investigate. At the time of the trial, he served as a police officer for the University of Arizona police department at Tucson, a position he had held since 1985. The witness had been a police officer for the City of East Dundee for approximately 2 1/2 years before joining the Crystal Lake police department, in which he had served for a period of 5 1/2 years. The witness had junior college level training in law enforcement, and he had attended evidence technician and accident investigation schools. He also had been a member of the emergency services team in Crystal Lake.

Officer Koukalik described Route 14 as a four-lane, asphalt highway, divided into two northeasterly and southwesterly lanes, which were separated in the center by a yellow line. (We note that the other witnesses generally referred to Route 14 as going in an east-west direction.) The entire width of the roadway from the northern border to the southern border was slightly in excess of 28 feet. At the time of the accident, weather conditions were clear, and it was not raining. The pavement was generally dry with some wet patches.

At the accident scene, Officer Koukalik measured the skid marks attributed to Keck's vehicle to be 34 feet 2 inches in length. The skid marks went in straight lines, entirely within the lane nearest the center line for westbound traffic. These were the only skid marks indicated on the roadway surface that morning. Specifically, he indicated that there were no skid marks or yaw marks found on the roadway attributable to the Daugherty van.

At the accident scene, Officer Koukalik talked to Keck, who said that he had been traveling at the speed limit of 35 miles per hour along Route 14 in a westerly direction. Keck stated that he had been "in no particular hurry," when his attention was "diverted momentarily" away from the road in front of him. When he had glanced back, he noticed that the vehicle (the Daugherty van) in front of him "had its brake lights on, and it was slowing." Keck also stated to him that he had applied his brakes after seeing Daugherty's brake lights and slid into the rear end of the Daugherty van.

Officer Koukalik spoke to Daugherty, who stated that he was traveling westbound along Route 14, when he observed a vehicle (Curran's) in front of him, "either slowing or stopping or attempting a left-hand turn into the driveway of Montgomery Wards," and that as a result, he started to slow his van, to avoid hitting her. Daugherty then stated that he was struck from behind by another vehicle (Keck's) "and was pushed forward slightly."

Officer Koukalik testified that Daugherty had not told him that Keck had struck him at the speed of 50 miles an hour, nor did he tell him that Curran had cut him off. In an offer of proof, Officer Koukalik related what Curran had said to him in a telephone interview several hours after the accident.

Curran stated that she was in the inside lane (heading westbound) on Route 14 and had slowed down to make a left-hand turn at the Montgomery Ward store. Her turn signal was on. She heard the squealing of rubber or tires and looked up in her rearview mirror and saw a van approaching her car "from the rear at what she thought was a high rate of speed." She took "an evasive action and quickly accelerated and turned her wheel to the right to get out of the path of that vehicle [the van]."

She managed to get out of the path of the van, and from her "side vision" she saw the van "go past her side and be involved in a motor vehicle accident."

On cross-examination, Officer Koukalik stated that Keck told him that he knew his vehicle would strike Daugherty's van. Keck also stated to him that during the collision, the van was pushed over the center line. Daugherty told Officer Koukalik that just prior to coming to a stop, his van was rear-ended by another vehicle and pushed forward at an angle across the center line., PLAINTIFF HARRY KETCHUM'S TESTIMONY

At about 9 a.m. on October 14, 1984, plaintiff ate breakfast with his cousin, Daniel Shrove, at the Lakeview Restaurant on Route 14 in Crystal Lake. (Mr. Shrove was killed in the accident.) At approximately 9:30 a.m., they left the restaurant and drove in an easterly direction along Route 14, their destination being a bull farm located on Route 14 in Crystal Lake. In addition to working his own farm, plaintiff had worked at the bull farm since approximately 1961 in barter for hay.

Plaintiff sat in the front passenger seat as Daniel Shrove drove his 1971 red Volkswagen Beetle (Volkswagen). Their car was in the curb lane as it passed through the intersection of Route 14 and Virginia Road just west of the Montgomery Ward store in Crystal Lake. The speed limit in the area was 35 miles an hour, and their vehicle was traveling at that speed.

As they traveled, plaintiff had been "relaxing, practically asleep," when he heard a horn, and looked up to see two vans coming toward the Volkswagen. The next thing he remembered was "what felt like bouncing over a curb, and that was it."

Plaintiff regained consciousness while being treated at the emergency room of the Northern Illinois Medical Center in McHenry, Illinois, where he received treatment for a period of ...


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