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09/11/89 Steven C. Redmon Et Al., v. Cyrus Austin

September 11, 1989

STEVEN C. REDMON ET AL., PLAINTIFFS-APPELLANTS

v.

CYRUS AUSTIN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

543 N.E.2d 1351, 188 Ill. App. 3d 220, 135 Ill. Dec. 604 1989.IL.1409

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

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. GOLDENHERSH, J., concurs. PRESIDING JUSTICE WELCH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiffs, Steven C. Redmon and John W. Beckman, filed an action in the circuit court of Madison County to recover damages for injuries they sustained when an automobile in which they were riding as passengers collided with an automobile driven by defendant, Cyrus Austin. Following a jury trial, a verdict was returned in favor of defendant and against each of the plaintiffs. The circuit court entered judgment on that verdict. A post-trial motion subsequently filed by plaintiffs was denied, and plaintiffs now appeal. We reverse and remand for a new trial.

The accident which gave rise to this litigation occurred in the early morning hours of April 14, 1984. The location was Highway 111 and 67 in Godfrey, Illinois, close to the entrance to the Godfrey Speedway and not far from a tavern known as Doris' 111. Plaintiffs were riding in an automobile, a 1968 Ford Mustang, driven by Rodney Walls. Redmon sat in the front seat, Beckman in the back.

The car in which plaintiffs were riding proceeded north along the highway. After crossing some railroad tracks in the area, it met and collided with an automobile driven by defendant. Defendant had just left Doris' 111 and, along with his girlfriend, Penny Shoptaw, was proceeding south down the highway. In the collision, the left front of defendant's car hit the left side of the car in which plaintiffs were riding in the area behind the driver's door. The force of the impact was so great that the rear of plaintiffs' car was sheared off.

Help arrived on the scene promptly. It came in the form of the Godfrey Fire Protection District and the Illinois State Police. They found, miraculously, that no one had been killed in the collision. Plaintiffs were taken by ambulance to the hospital, where they were examined and later released. Both automobiles had to be towed away.

All of this is not in dispute. What is disputed, and what proved to be the primary controversy at trial, is how exactly the collision took place. Plaintiffs' theory was that defendant had not felt well at work that day, had gone out drinking that evening, and had become intoxicated. Because of his intoxication, he was unable to navigate around a curve in the road and crossed the centerline, striking the automobile in which plaintiffs were riding. Defendant, for his part, denied that he was in any way responsible for the collision. He argued that what had actually happened was that the driver of the car in which plaintiffs were riding lost control of the vehicle as it passed over the nearby railroad tracks. He claimed that the car became airborne as it drove over an incline in the road where the tracks crossed the roadway. As it landed it moved down the roadway sideways out of control. Defendant claims that he flashed his headlights and attempted to move to the shoulder of the road, but was unable to get out of the path of the oncoming vehicle.

The evidence in this case was sharply divided. Plaintiffs both testified that their car never left its lane and never went sideways down the road. Both related that defendant's automobile did not follow the roadway along the curve but instead cut over in a straight line, where it crashed. They both said that after the collision defendant appeared to be intoxicated. To support their claim, plaintiffs called as witnesses Rod Walls, the driver of their car, and Stacey Lynn Castillo, an offduty barmaid from Doris' 111 who happened to be in the area when the accident took place. Castillo, whose younger brother was a friend of plaintiffs and Walls, testified by deposition that when she arrived on the scene, defendant's automobile was sitting partially across the centerline. Plaintiffs also called defendant as an adverse witness.

Defendant testified not only as an adverse witness during plaintiffs' case, but also as a witness on his own behalf. During his testimony he denied plaintiffs' version of what occurred. He claimed that he did not exceed the speed limit, that he did not cross the centerline, and that he was not drunk. Although he did not deny consuming alcohol that evening, he explained that he behaved as he did after the accident because he was upset, he felt dizzy, and his knee hurt. Defendant did not call his passenger, Penny Shoptaw, as a witness. His attorney claimed that he did not do so because defendant and Shoptaw were no longer seeing one another, she was not under his control, and he had been unable to contact her regarding the trial. Most of the evidence presented on behalf of defendant consisted of the testimony of Thomas L. Acker, a lieutenant with the Godfrey Fire Protection District who was present on the scene the night of the accident, and Nick Bowman, the Illinois State trooper who had been called to investigate the accident. The particulars of this testimony will be addressed, where necessary, in the Discussion which follows. At this juncture, we note simply, as we have done before, that the jury ultimately returned a verdict in favor of defendant. Judgment was entered on that verdict by the circuit court, and plaintiffs' post-trial motion was denied. They now appeal.

On this appeal, plaintiffs argue that the circuit court's judgment should be reversed and the cause remanded for a new trial because of a number of errors committed by the circuit court with respect to the admission of evidence. We agree. At trial, Lieutenant Acker of the Godfrey Fire Protection District was allowed to testify, over objection, that he had been told by someone he "believed to be one of the occupants" of the automobile in which plaintiffs were riding that "the driver had lost control of the vehicle coming across the railroad tracks." Plaintiffs argue that this testimony constituted mere hearsay and should not have been permitted. We agree.

As a general rule, an out-of-court assertion offered to prove the truth of the matter asserted constitutes hearsay and is not admissible. (Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 153, 524 N.E.2d 1136, 1142.) This is just such a statement. Defendant nevertheless argues that admission of the statement was proper because it fell within an exception to the hearsay rule. Specifically, he claims that the statement constituted an admission or declaration against interest. The problem with this theory is that Acker admitted on cross-examination that he did not, in fact, know who had given him the statement. At trial, the following exchange took place between Acker and counsel for plaintiffs:

"PLAINTIFFS' COUNSEL: Sir, you don't know for a fact that they were actually had been [ sic ] occupying that car, do you?

ACKER: No, sir, not for a fact., PLAINTIFFS' COUNSEL: And you can't tell the jury as you're sitting here today ...


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