holding that the trial court did not err in refusing to permit expert testimony of a traffic engineer when an average person would know and comprehend that guardrails, barriers, or blocks have the effect of slowing, stopping, or deflecting a vehicle from coming onto the premises
How later courts described this case
- holding that the trial court did not err in refusing to permit expert testimony of a traffic engineer when an average person would know and comprehend that guardrails, barriers, or blocks have the effect of slowing, stopping, or deflecting a vehicle from coming onto the premises
- a jury could conclude that defendant could “reasonably foresee or anticipate that an out-of-control vehicle could enter into the picnic area” where there was no barrier and there had been a prior incident
- error not to admit evidence of prior accidents for purposes of jury's assessment of foreseeability of accident involving out of control vehicle
- “neither rare nor unusual for vehicles to go out of control due to mechanical failures within them”
Written by the judges who cited it.
The opinion
Mr. JUSTICE DIXON concurring in part and dissenting in part:
While I am in accord with the reasoning and result of the majority regarding a new trial as to Cock Robin I must dissent from the view that fails to give a new trial as to all defendants.
Shortly after the accident the defendants, Cock Robin and Zawacki, got possession of the 1959 Cadillac involved and had it delivered to Packer Engineering for a complete inspection. The expert testified:
“It was immediately apparent on examining the automobile that the reason for the brake failure was a falling out of the brake adjuster * # *.
The rear brakes were in fair condition.
By removing the left front wheel we found that the adjusting unit fell out loose on the ground.
The wheel cylinders, mastercylinders, booster unit and all hoses and fittings, all were found to be in working order and the oil level in the reservoir was satisfactory to operate all four wheel cylinders.”
About a week before the occurrence the defendant Zawacki had worked on the adjuster which fell out.
At the trial the court denied counsel the right to cross-examine Zawacki as to answers made on his interrogatories. On cross the test is not whether the answer sought will elucidate any of the main issues but whether it will to a useful extent aid the jury in appraising the credibility of the witness and thereby assessing the probative value of the direct testimony. A wide latitude to test recollection has always been permitted. In general any permissible kind of impeaching matter may be developed on cross since it has for one of its purposes the testing of the credibility of witnesses. Cleary, Illinois Evidence, 2d Ed. Sec. 9.2. Marut v. Costello, 34 Ill.2d 125 .
The rule, cited by the majority, barring contradiction of a witness as to collateral matters merely prohibits the calling of other witnesses or offering of extrinsic evidence to contradict and does not bar further examination of the witness himself on the chance that he may change his testimony.
I further believe that in the instant case the matter was not collateral. Matters directly concerning the credibility of a party witness are not collateral. (Cleary, page 140) Facts admissible to discredit a witness as to bias, corruption, or the like are not collateral. (98 C.J.S. Witnesses, Sec. 633; McCormick on Evidence Sec. 47.) Whether a party knows a witness is certainly material.
As to the direction of a verdict against Cholewa, I cannot agree with the majority that this was a Pedrick situation. First, there was strong evidence that the cause of the brake failure was a falling out of a brake adjuster, a sudden mechanical failure, and not absence of lining. (Cholewa testified that neither Zawacki or his mechanic told him that he needed new lining on his brakes. They adjusted the brakes and when he drove out he had a full pedal and continued to have a full pedal until the accident when he had none at all.) Second, I believe that a plaintiff ought to be allowed to try his own case. The motion for directed verdict was made by Mr. Sorensen, the attorney for Cock Robin. Plaintiff’s attorney did object and he further objected to the instruction directing the verdict. (Abstract pages 185 and 186. Record pages 1233 and 1234.)
The record shows that Cholewa was never defaulted and was present throughout the trial. The first pleading of Cholewa was an appearance pro se filed Jan. 4, 1971. He also filed a motion for leave to file an appearance and answer. The defendant Cock Robin then moved for a default against Cholewa. No default was ever taken. The court simply said, “We will proceed on the basis of the record.” Plaintiff’s attorney never asked for, did not want, objected to and waived a default if there ever was one to be implied. The default of a party may be waived by the party entitled to judgment and that waiver may be implied. 47 Am.Jur.2d, Judgments Sec. 1161.
The majority seem to feel that plaintiffs were not prejudiced since they got a judgment against Cholewa (who was not insured and has not 5 cents to his name). If there was no prejudice to plaintiffs why did Cock Robin seek the directed verdict? The prejudice is obvious.
These children did not have a fair trial and can not have a fair new trial against Cock Robin unless Zawacki and Cholewa are parties.