APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
546 N.E.2d 1000, 190 Ill. App. 3d 973, 137 Ill. Dec. 887 1989.IL.1600
Appeal from the Circuit Court of Peoria County; the Hon. Richard Eagleton, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, P.J., and BARRY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
Plaintiffs-appellants Robert L. Yetton and Faye Yetton (plaintiffs) filed a two-count complaint against Johnnie W. Henderson alleging negligent operation of his truck, causing a collision with Robert Yetton (Yetton), resulting in permanent head injuries to Yetton. Vivian Henderson was a passenger in Johnnie Henderson's truck. Johnnie Henderson subsequently died in an accident unrelated to this incident, and Vivian Henderson was substituted as representative of his estate.
Plaintiffs alleged that both parties were driving west on Interstate 74 in Peoria County, and that Johnnie Henderson's truck changed lanes in front of the Yettons' vehicle, giving Yetton no time to avoid a collision with the Henderson truck. By way of answer, defendant admits to the lane change, but denies that it caused the accident.
At trial, plaintiffs called Vivian Henderson to testify as an adverse witness. Mrs. Henderson testified that she was a passenger in her husband's truck, and they were traveling west at 50 to 55 miles per hour, when they changed lanes. She related that they felt a thump in the rear of the truck just after changing lanes. She also stated that there was a light misty rain, although the investigating officer testified that it was raining harder than he had ever seen before.
Robert Yetton was allowed to testify that as he moved onto Interstate 74, he could see a slow moving truck ahead of him and then changed lanes intending to pass the truck on the left. The court then instructed that Yetton could testify no further regarding the accident.
Lieutenant David Briggs was then qualified as an accident reconstructionist. The court, however, barred Lt. Briggs from relying on testimony of Yetton, which was barred by the Dead Man's Act in reaching his opinion.
Plaintiff also subpoenaed Trooper Dan Law, who was listed by defendant as her expert. Pursuant to defendant's motion, the court quashed the subpoena and further refused to allow plaintiff to call Trooper Law as a witness. Trooper Law, however, was not called by defendant as a witness, and plaintiff's additional request to call Trooper Law was denied., Defendant presented Vivian Henderson as a witness and the following questions and answers were given:
"QUESTION: All Right, now, Mrs. Henderson, I am going to ask you some questions about your experience with your husband and your observations with your husband with respect to his driving vehicles. In the years of your marriage, did you ever have opportunities to see and be with Mr. Henderson when he was actually driving in -- lets put automobiles to begin with?
QUESTION: Did you during your years of marriage with your husband have numerous opportunities to have occasion to be with him while driving ...