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05/03/89 William Moore, Adm'r of v. Janis Bellamy

May 3, 1989





538 N.E.2d 1214, 183 Ill. App. 3d 110, 131 Ill. Dec. 658 1989.IL.654

Appeal from the Circuit Court of Franklin County; the Hon. Loren P. Lewis, Judge, presiding.


JUSTICE CHAPMAN delivered the opinion of the court. GOLDENHERSH and HOWERTON, JJ., concur.


On a cold and drizzly morning on April 1, 1983, plaintiff's decedent was killed in a head-on vehicular collision in Franklin County, Illinois. Just prior to the collision, a line of cars was traveling west on Illinois State Route 14. The first of these was occupied by Apryl Malkovich, followed by one or more unidentified vehicles, followed by a car driven by Janis Bellamy and then the decedent's vehicle. At the time of the accident, William Collier was driving a semitractor trailer eastbound on Route 14, when he collided head-on with the pickup truck driven by the decedent. Illinois State Route 14 intersects with the Eakin Grove Road. Immediately prior to the accident Apryl Malkovich activated her turn signal and slowed her vehicle in order to turn left onto Eakin Grove Road. Ms. Malkovich testified that she waited to make her turn while the semitractor trailer that was traveling eastbound drove past. Upon executing her turn and continuing down Eakin Grove Road, Ms. Malkovich heard the collision.

Plaintiff, as administrator of the decedent's estate, filed a complaint against Janis Bellamy alleging that, at the time of the accident, Apryl Malkovich brought her vehicle to a stop in preparation for making a left turn and that Janis Bellamy acted negligently in suddenly and unreasonably slowing or stopping her vehicle on the roadway and in failing to keep a proper lookout. Plaintiff alleged that as a proximate result of Janis Bellamy's negligence Janis Bellamy did apply the brakes on her vehicle and did slide upon the roadway and onto the shoulder, thereby proximately causing plaintiff's decedent to turn or slide out of the westbound lane of travel and into the eastbound lane, running head-on into the semitractor trailer.

Following a jury trial, verdict was returned for the defendant and judgment was entered upon the verdict, from which plaintiff appeals. Plaintiff asserts that judgment should be reversed and a new trial ordered. As grounds, plaintiff argues that the trial court committed prejudicial error by failing to rule upon plaintiff's motion in limine seeking the exclusion of a hearsay statement and thereafter denying plaintiff's motion for mistrial made after the defendant improperly testified concerning the hearsay statement. Plaintiff also urges on appeal that the trial court abused its discretion in not finding the improper closing argument of defense counsel so prejudicial as to deny plaintiff a fair trial.

Prior to trial plaintiff's counsel moved in limine that the defendant not make reference to any statement allegedly made by an unidentified occurrence witness. The court denied the motion in limine, ruling that if and when the problem developed at trial counsel could then voice an objection and the court would deal with the matter at that time. At trial defendant Bellamy testified that, just prior to the accident, she was traveling westbound when she came upon vehicles in the westbound lane. She stated that when she saw the vehicles in her lane she applied her brakes, and in sensing that there was a lack of traction, she drove off the road onto the shoulder and stopped. She then turned to reassure her two boys in the backseat. Mrs. Bellamy stated that she then heard a noise and got out of her car to investigate. The testimony of Mrs. Bellamy as to what then happened is as follows:

"MRS. BELLAMY: I got out of the car and walked to the back of my car, when I heard, she tried to pass; help that lady.

MR. MITCHELL: I am going to object to that. That's inappropriate.

THE COURT: All right. Sustained.

MS. WHITTINGTON: You got out of your car --

THE COURT: The jury is instructed, also, to disregard that answer.

MS. WHITTINGTON: Why did you go to the back of your car, to look at something?

MRS. BELLAMY: Because I thought perhaps I had done something to the muffler or exhaust system. I had no idea what the noise was.

MS. WHITTINGTON: Did you look around besides the ...

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