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04/18/95 MICHAEL J. HOUSH v. JENNIFER L. BOWERS

April 18, 1995

MICHAEL J. HOUSH, PLAINTIFF-APPELLANT,
v.
JENNIFER L. BOWERS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois. No. 92-L-1655. Honorable Martin Rudman Judge, Presiding.

Released for Publication May 18, 1995.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. McCUSKEY and Slater, JJ., concur.

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

Michael Housh filed a negligence action against Jennifer Bowers for injuries he sustained when their vehicles collided at an intersection. The jury returned a verdict for Bowers. Housh appeals. We reverse and remand.

At approximately 9:25 a.m. on February 17, 1990, a 1982 GMC dump truck driven by Michael Housh collided at the intersection of Illinois Route 59 and 95th Street with a 1982 Ford Crown Victoria station wagon driven by Jennifer Bowers. Prior to the accident, Housh had been driving south on Route 59, a two-lane highway, between 50 and 55 miles per hour; the posted speed limit was 55 miles per hour. The weather was clear; the pavement was dry, and neither drivers' view of the intersection was obstructed.

Housh testified that he had seen Bowers' car stop at the intersection and that Bowers and her passenger appeared to look in his direction. When he was 15 to 20 feet from the intersection, Housh saw Bowers' car start to cross the intersection. He swerved and attempted to apply his brakes, but did not sound his horn. He estimated his speed at 45 to 50 miles per hour when the left front portion of his truck hit the right front portion of Bowers' car. Both vehicles came to rest facing south, with Housh's truck in a ditch along the east side of Route 59 and Bowers car on the shoulder of the southbound lane of Route 59. The investigating police officer found no skid marks prior to the point of impact.

When the accident occurred, Bowers was 16 years old and had been driving for about two months. On the morning of the accident, she had been travelling west on 95th Street and had stopped at a stop sign at the intersection of 95th Street and Route 59. She testified that she had waited there "quite a while" for traffic and had accelerated slowly into the intersection when traffic was only at a distance. She estimated that in four to five seconds she had moved 16 to 19 feet into the intersection when her passenger shouted, "Truck!", and Bowers saw Housh's truck for the first time.

At trial, Bowers described the truck's speed as "high" and "really fast", which she considered to be 50 or 55 miles per hour. She stated that she had not heard a horn or screeching tires prior to impact. Despite her attempt to avoid the collision by applying her brakes and swerving to the left, the two vehicles collided shortly after she saw the truck.

After the accident, Housh was taken to the emergency room, where he was treated for injuries he sustained when he was thrown against the lap belt he had been wearing. His family physician, Dr. Ronald Cheff, treated him for back pain and referred him to Dr. Gene Neri, a neurologist, when his condition failed to improve. Dr. Neri conducted several tests, including two electromyography (EMG) tests. The EMG results were abnormal and indicated nerve root damage in Housh's lower back. After Dr. Neri told Housh not to return to work as a concrete construction laborer, Housh was unemployed from February 17, 1990, to November 12, 1991, when he went to work for a new employer without medical approval.

Bowers pleaded guilty to failure to yield the right-of-way and was placed under court supervision. Housh subsequently filed this negligence action against Bowers.

The trial court denied Housh's motion in limine to exclude evidence of his five-year-old felony conviction for possession of a controlled substance with intent to deliver, and evidence of the conviction was admitted at trial. Also at the trial, the court refused to admit the testimony of Dr. Cheff and Dr. Neri concerning the permanence of Housh's back injury because they had not recently examined him. The jury returned a general verdict for Bowers.

ADMISSION OF A PRIOR FELONY CONVICTION

On appeal, Housh first argues that denial of his motion in limine to exclude evidence of his prior felony ...


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