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12/14/89 Sheryl Rose Augenstein, A v. James Pulley

December 14, 1989







SHERYL ROSE AUGENSTEIN, a Minor, by Rebecca Augenstein, her

al., Defendants and Counterplaintiffs-Appellees (Floyd

Edward Steinmetz, as Father and Next Friend of Matthew

Steinmetz, et al., Plaintiffs)

No. 5-88-0255

547 N.E.2d 1345, 191 Ill. App. 3d 664, 138 Ill. Dec. 724 1989.IL.1948

Appeal from the Circuit Court of Williamson County; the Hon. Bill F. Green, Judge, presiding.


JUSTICE CHAPMAN delivered the opinion of the court. WELCH and HARRISON, JJ., concur.


This case is a consolidation of three separate cases arising from an auto accident involving two vehicles that occurred August 30, 1985. On that date Floyd Steinmetz drove his white Ford LTD sedan to Marion, Illinois, with his two sons to pick up a pizza. Steinmetz picked up the pizza and was traveling back home south on Route 37 when the collision occurred.

The driver of the other vehicle, 16-year-old James Pulley, had received his driver's license just two weeks earlier. James Pulley borrowed his parents' red Ford Escort, and he and Gilbert Lee Allen were picking up their dates for the evening. They drove first to Sheryl Augenstein's home, south of Marion off Route 37. Sheryl joined James and Gilbert, and then the three of them traveled north on Route 37, intending to pick up another young lady. The collision occurred while they were on their way to Marion, Illinois.

Route 37 is a two-lane paved road. As one approaches the scene of the accident traveling southbound, the direction Steinmetz was traveling, the road curves gently to the left. Just north of the curve there is a slight crest of a hill. At the curve the road dips slightly. The posted speed limit is 55 miles per hour. It is undisputed that both vehicles were traveling at lawful speeds and that the impact occurred about four-tenths of a mile north of the curve. The testimony, however, was in conflict as to just how the accident happened.

As a result of the head-on collision between the two vehicles Gilbert Lee Allen was killed. Sheryl Augenstein and James Pulley sustained personal injuries. The cars sustained property damage. Floyd Steinmetz and his two sons, Matthew and Joey, suffered personal injuries. Each of the parties filed separate claims against the respective drivers in three separate lawsuits, which were consolidated for trial. The jury returned a verdict for all plaintiffs and found both defendants negligent. The jury next considered the issues of contributory negligence and contribution, and found that both drivers were each 50% at fault. Floyd Steinmetz filed this appeal.

The main issue at trial concerned which of the vehicles was in the proper lane of traffic just prior to the accident. Because of this dispute testimony regarding the location of the pizza box in the Steinmetz vehicle at the time of the accident was significant. Counsel for James Pulley presented evidence that the pizza was in the front of the car, implying that it fell and that when Floyd Steinmetz attempted to retrieve it his vehicle veered into the oncoming lane of traffic.

Errors on appeal are urged with regard to the reconstruction evidence presented at trial and the disallowance of certain testimony directly impacting upon the credibility of a witness who testified as to the location of the pizza. The errors urged can be divided into four groups: (1) the court's barring Steinmetz' counsel from describing evidence in opening statement and during closing argument regarding the credibility of William Campbell; (2) the court's ruling on an alleged judicial admission by Pat Samples' counsel; (3) the court's allowing Dr. Orthwein to testify as to the point of impact of the vehicles and the court's considering Dr. Orthwein's testimony in ruling on the motions for directed verdict; and (4) the court's instructing the jury that they had to find Floyd Steinmetz at least 1% at fault during the contribution phase of its deliberations. Floyd Steinmetz contends that the cumulative effect of these errors requires reversal of the judgment of the trial court. In the alternative, Floyd Steinmetz argues that the trial errors denied him a fair trial, and he asks that the cause be reversed for a new trial.

On the day of the accident Floyd Steinmetz was traveling with his sons Matthew, age 12, and Joey, an infant. All three were riding in the front seat of the car. Matthew testified at trial that his father put the pizza in the back seat of the car before driving home. Matthew stated that he saw the other car prior to the accident and that it was in his father's lane.

Floyd Steinmetz testified that after picking up the pizza in Marion, Illinois, he placed it on the back floorboard behind the driver's seat. On cross-examination, a portion of the Steinmetz deposition was read and Floyd Steinmetz acknowledged that the testimony therein was true. A question posed at the deposition was whether it was possible that one of Floyd Steinmetz' boys was holding the pizza while they drove. Mr. Steinmetz replied, "could be. My boy Matthew might have been holding it, but usually we put it in back."

Floyd Steinmetz testified that it started misting rain as he and his boys headed home after getting the pizza. He testified that he had his windshield wipers and his headlights on. He stated that as he reached the peak in the road on Route 37, just north of where the collision occurred, car lights appeared from nowhere. When he noticed the lights, the other car was in his lane. He tried to turn the steering wheel, but the cars hit and the wheel was jerked out of his hand.

James Pulley testified that he recalled turning on his windshield wipers as he turned onto Route 37. He testified that that was the last thing he remembers prior to the accident. State troopers Roger Walker and Dennis Tregoning testified that they spoke with James Pulley about one hour after the accident. Officer Walker declared that James did not say that he had veered into the oncoming lane of traffic prior to the accident, but that he did tell him that he was reaching to turn on the wipers and at some point the accident occurred. Officer Walker also spoke with Floyd Steinmetz after the accident. Mr. Steinmetz told Officer Walker that as he looked up, he saw a car coming over into his lane of traffic, and that he simultaneously attempted to pull to the right to get out of the way.

Floyd Steinmetz' statement of what happened just prior to the collision was supported by post-occurrence witnesses. Franklin Lokerse testified that his house is located east of Route 37 adjacent to where the accident occurred. He was in his driveway some 150 feet away when he heard the vehicles collide. He immediately rushed to the scene, and upon approaching Steinmetz' car, Lokerse testified that Mr. Steinmetz made the statement: "I couldn't get away from him."

Imogene Benton, another post-occurrence witness who came upon the accident scene, testified that she approached the Steinmetz car and that its driver kept saying: "I tried to get out of his way, moved over, tried to get out of his way, and he just kept coming."

In support of Floyd Steinmetz' theory that the pizza was not in the front seat, and was not a link in the causal chain, his sister took the witness stand. She testified that she viewed the two automobiles the day after the accident and observed the pizza box on the floorboard behind the driver's seat. Contrary to her observation, William Campbell testified that he observed the pizza box on the front floorboard. It is with regard to Mr. Campbell's testimony that we are asked to address the first issue on appeal.

Campbell stated that he heard the collision, went to the scene, and arrived after Floyd Steinmetz was out of his car. Campbell testified that he asked Steinmetz what happened and that Steinmetz told him the pizza fell on the floorboard and when he reached to pick it up, "there was nothing he could do." Campbell admitted that he never told the investigating officers of Steinmetz' comment about the pizza. At trial he stated that the person to whom he initially mentioned the comment was his wife. This testimony was impeached by a statement in Campbell's deposition which read: "I ain't even told my wife." Campbell revealed Floyd Steinmetz' comment about a year after the accident and a year prior to trial.

Approximately one year before the trial, William Campbell was arrested due to his involvement in a fight. H.L. Pulley, James Pulley's father, was one of the jailors on duty when Campbell was brought to the jail. While at the jail Campbell told Pulley of the comment he allegedly heard Floyd Steinmetz make. Steinmetz argues on appeal that if Campbell's testimony were accepted, and if the jury believed that the pizza was in the front seat, then perhaps the jury believed that Steinmetz was distracted by the pizza and was partially responsible for the accident. Steinmetz' counsel argues that in his opening statement, the court erroneously limited his ability to comment on the credibility and bias of William Campbell. The dialogue that took place at trial regarding this issue was:

"MR. SCHMIDT: The evidence will show that H.L. Pulley knows Mr. Campbell because when Mr. H.L. Pulley was a Marion Police Officer and William Paul Campbell was going up [ sic ], he had some little problems and -- .

MR. FERRELL: Your honor, I object, and I have a motion to make.

THE COURT: Okay. I'm going to sustain the objection. Hold the motion until he finishes.

MR. FERRELL: Yes, sir.

THE COURT: Go ahead. I don't want any Discussion of any ...

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