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May 6, 1994



Rehearing Denied June 22, 1994.

Gordon, Murray, Cousins

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Plaintiff brought suit against defendants seeking damages for injuries he suffered when the car he was driving collided with a van owned by defendant Holiday Inn Midway and driven by defendant Mushtaq Siddiqui. The jury returned a verdict in favor of defendants. Plaintiff filed a post-trial motion seeking a new trial which the trial court granted. Defendants filed a petition for leave to appeal from the order granting a new trial pursuant to Illinois Supreme Court Rule 306(g). For the reasons set forth below we reverse the trial court's order granting plaintiff a new trial.


Between 7 and 7:30 p.m. on January 11, 1983, a car driven by plaintiff Christian Lagoni and a van driven by defendant Mushtaq Siddiqui were both traveling southbound on Ridgeland Ave. between 87th Ave. and 88th Ave. During that stretch of roadway, Ridgeland Ave. has two northbound and two southbound lanes which are divided by a raised ribbed median. There is a left hand turn lane which southbound cars use to turn into a grocery store parking lot.

It had been snowing that day and the roads were icy. Lagoni's wife and oldest daughter were riding with him. Both vehicles entered the left turn lane from the lane immediately to its right. The front end of defendants' van subsequently collided with the rear right corner of plaintiff's vehicle in the left turn lane. As a result of this collision, both vehicles suffered very minor body damage.

After speaking with police who came onto the scene, Lagoni went home. That evening he began to suffer severe pains in his head and neck. He was subsequently taken to a hospital emergency room where he received treatment. He returned home that night.

Lagoni subsequently filed this suit naming as defendants Siddiqui, Holiday Inn Midway and Ali Yusef, who was the general partner of Holiday Inn. A jury trial was held.

At trial, the plaintiff, Christian Lagoni, testified that prior to the accident, he entered the left turn lane and came to a stop. He was waiting to turn left into the grocery store for five to ten minutes when his car was hit from behind by the defendants' van. Lagoni stated that as a result of this impact, his car was moved about 10 to 15 feet forward, coming to rest on the ribbed median.

Lagoni said that before the accident he was in "perfect health" and had "no problems with anything." He never received treatment for neck injuries or severe headaches prior to the accident and had never before experienced pain similar to what he experienced after the accident.

On cross-examination, the following exchange occurred concerning plaintiff's emergency room treatment:

"Q. Did they ever mention the fact that you had a pre-existing degenerative condition to you?

A. No, they did not.

Q. Are you aware of the fact that you had a pre-existing degenerative condition to your neck?"

Plaintiff's counsel then objected on the grounds that defense counsel was attempting to introduce substantive evidence for the defense on cross-examination which could not be properly introduced even if offered during defendants case in chief. During a sidebar on this objection, the trial court sustained the objection as to the first question concerning the emergency room staff stating that the form of defense counsel's question was "without a doubt grossly improper." Defense counsel then inquired whether he could ask plaintiff "whether he was aware of the fact that he had a pre-existing degenerative condition?" The court answered that he could. The court then proceeded to rule that the emergency room record which indicated that defendant had a pre-existing injury would not be admissible at trial.

After the sidebar, the trial court sustained the objection in open court and then instructed the jury to completely disregard the question. Defense counsel asked plaintiff the following question:

"Q. Mr. Lagoni, were you aware of the fact that you had a pre-existing cervical arthritic condition before the occurrence?

A. No, sir."

Defense counsel then impeached plaintiff with interrogatories in which plaintiff had answered that as the result of the accident, he suffered an aggravation of his pre-existing cervical arthritis. Plaintiff's counsel stipulated to the interrogatories and the answers given to those interrogatories.

Suzanne Lagoni, plaintiff's wife, testified that she was riding in plaintiff's vehicle when it was struck. She stated that the car moved between five and ten feet after impact. On cross-examination, she stated that they were stopped about five to six feet from the ribbed median when they were struck. She testified that after the accident "I had to back [the car] up a little bit" in order to turn into the parking lot, indicating that the car was pushed forward by the impact.

Debra Hammonds, daughter of Christian and Suzanne Lagoni, testified next. She stated that she was riding in the backseat of the car on the night of the accident. Hammonds said that they were sitting in the left hand turn lane for a good five minutes before they were struck from behind by defendants' van. She could not tell how far the car moved after impact, but said that it did move onto the ribbed median as a result of the impact.

On cross-examination, defense counsel impeached Hammonds with prior deposition testimony:

"Q. [DEFENSE COUNSEL] Do you remember giving a deposition in this case on May 19th of 1986?

A. Yes.

Q. At that time you were under oath?

A. Yes.

Q. You were asked a number of questions by an attorney?

A. Yes.

Q. And you answered those questions truthfully?

A. To the best of my ability.

Q. Were you asked this question at that time, and did you give this answer, Page 13, line two:

'Q. After the accident, where was your car located immediately after the contact with the van?

A. It was still in the turning lane.'

Did you give that answer to that question?

A. Well, I must have if it's written down.'"

There was no objection to this impeachment.

Defendant Mushtaq Siddiqui then testified, with the assistance of an interpreter, as an adverse witness pursuant to section 2-1102 of the Illinois Code of Civil Procedure. He admitted that his van stuck the rear right side of Lagoni's car ...

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