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05/19/94 HUGO THURMOND ET AL. v. AMBROSE MONROE

May 19, 1994

HUGO THURMOND ET AL., APPELLEES,
v.
AMBROSE MONROE, INDIV. AND AS AGENT OF SCHWERMAN TRUCKING COMPANY, ET AL., APPELLANTS.



Nickels

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Plaintiffs, Hugo Thurmond (Hugo) and his wife Barbara Thurmond (Barbara), brought a negligence action in the circuit court of Cook County. Their action arises out of an automobile collision between Hugo and defendant Ambrose Monroe as Hugo and Monroe were traveling in opposite directions on a two-lane highway on September 19, 1981. At the time of the collision, Monroe was driving a tractor-trailer truck on behalf of defendant Schwerman Trucking Company. At trial, plaintiffs alleged that Monroe caused the accident by crossing the center line of the highway, while defendants alleged that Hugo crossed the center line. After trial, the jury returned verdicts in favor of plaintiffs. The appellate court affirmed (235 Ill. App. 3d 281), and we granted defendants' petition for leave to appeal (134 Ill. 2d R. 315). We affirm.

On February 23, 1982, Hugo appeared in traffic court on a traffic citation for improper lane usage (Ill. Rev. Stat. 1989, ch. 95 1/2, par. 11-709(a)) in connection with the collision. In the traffic court proceeding, Hugo was represented by counsel and pleaded not guilty. The traffic court heard testimony from Monroe, Hugo, and Denis Rauch, the investigating police officer. The court then convicted Hugo and fined him $25 plus costs.

The civil trial commenced on March 13, 1990. Prior to trial, plaintiffs filed a motion in limine to exclude the traffic court conviction. At the same time, defendants moved for partial summary judgment based on the traffic court conviction. After a hearing, the trial court granted plaintiffs' motion in limine and denied defendants' motion for partial summary judgment. Plaintiffs also filed a motion in limine to exclude Officer Rauch's opinion testimony regarding the point of impact of the vehicles. The trial court granted this motion after a hearing.

During the civil trial, Hugo testified that he stopped at a tavern after work and had two beers on the night before the collision. After leaving the tavern, he went home and went to sleep around 9:30 p.m. Hugo awoke at about 1:30 a.m. and left his home in Chicago to go hunting in Savanna, Illinois. At approximately 5 a.m., Hugo was driving his Chevy Blazer westbound on Route 64, near its intersection with Chana Road, when he saw Monroe's tractor-trailer approaching from the opposite direction. According to Hugo, one of Monroe's headlights then crossed over into Hugo's lane. Hugo honked his horn and raised one hand in front of his face and eyes. He stated that he next remembers waking up in a hospital.

Plaintiffs also read the evidence depositions of Dr. Srivastava and Dr. Bartucci into the record in the presence of the jury. Both physicians testified about the nature of Hugo's injuries. In addition, Dr. Srivastava testified that he treated Hugo shortly after the collision and that Hugo's blood-alcohol level was 0.10. Dr. Srivastava then stated that this level may have impaired Hugo's judgment at the time of the collision.

Defendant Monroe testified that he left his worksite in Dixon, Illinois, at 4:30 a.m. in an 18-wheel tractor-trailer truck to deliver cement to Franklin Park. Monroe stated that he inspected the tractor-trailer before leaving the worksite to make certain it was operating properly. Monroe then testified that he was traveling eastbound on Route 64 near Chana Road at around 5 a.m. Monroe claimed that he saw Hugo's headlights cross into his lane and that he applied his brakes and steered toward the right hand shoulder of his lane. As he was steering onto the shoulder, he collided head-on with Hugo's vehicle.

Officer Rauch of the Ogle County sheriff's department testified next. At the time of the accident, Rauch had worked for the sheriffs department for just over a year. Rauch testified that he had taken a law enforcement course, which included the investigation of traffic collisions, as part of his police training. Before September 19, 1981, Rauch had investigated about 15 to 20 accidents.

Initially, Rauch stated that he had no independent recollection of the collision but had prepared a police report. In addition, Rauch had asked a photographer to take several pictures of the scene. After consulting the report, Rauch testified that he arrived at the scene of the collision at 4:54 a.m. He stated that Hugo's automobile was in the westbound lane of Route 64, and the tractor-trailer was lying in a ditch next to the eastbound lane. Rauch investigated the collision for approximately eight to nine hours, during which time he examined skid marks, debris, fluid, damage to the highway, and the placement of the vehicles. Rauch testified that he observed debris, fluid, and oil in Monroe's lane but did not see any skid marks or damage to the highway in Hugo's lane.

On cross-examination, Rauch acknowledged that his testimony regarding the resting place of Hugo's vehicle differed from its location in his diagram. In addition, Rauch stated that there was fluid, oil, and debris on both sides of the highway. Rauch also conceded that he failed to record the location of certain skid marks in his police report. A photograph showed these skid marks to be located in Hugo's lane. Finally, Rauch acknowledged that he improperly identified a utility pole in the police report.

After closing argument, the jury returned a verdict of $319,642 in favor of Hugo, reduced by 16.5% for Hugo's comparative negligence to $266,901. It also returned a verdict of $5,000 in favor of Barbara for her loss of consortium. Defendants raise three issues on review:

(1) whether the trial court erred in excluding Hugo's traffic conviction as evidence that Hugo crossed the center line;

(2) whether the trial court erred in denying defendants' motion for partial summary judgment based on the ...


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