Twait v. Olson , 104 Ill. App. 3d 191 ( 1982 )

JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Tomm Twait received a severe permanent brain injury when a car driven by Bruce Olson in which Twait was passenger was struck from the rear by a car driven by defendant Forrest Farley while both were traveling north on a preferential highway known as the Leland Spur Road. Plaintiff brought this personal injury action against both Olson and Farley, and the jury returned a verdict in favor of plaintiff against defendant Farley for $550,000 and in favor of defendant Olson against plaintiff. Farley appeals from the judgment entered upon the verdict against him, asserting (1) that Farley should have been granted a directed verdict; (2) that the verdict was contrary to the manifest weight of the evidence; and (3) that eight evidentiary errors occurred during trial which either alone, or cumulatively, deprived Farley of a fair trial.

In order to consider the questions relating to the correctness of the verdict, it is necessary to set forth the factual circumstances of the accident. At about 12:15 a.m. on July 3,1977, defendant Olson was driving his 1969 Camaro in an easterly direction along Stein Road approaching the intersection with Leland Spur Road. Both roads consist of only two lanes. Tomm Twait was a passenger in the front seat of the Olson vehicle. According to Olson, when he reached the intersection, he stopped at the stop sign, and saw a car approaching about one-quarter mile away to his right. He shifted into first gear, and as he started to pull out and make a left turn onto Leland Spur Road, he estimated the on-coming car to be about one-eighth mile to the south. Olson’s vehicle was struck from the rear by the Farley automobile extensively damaging both vehicles. Farley said that when he saw Olson’s car in front of him, he slammed on his brakes. Resulting skid marks measured 129 feet to the apparent point of impact at the north edge of the intersection and an additional 144 feet north of that point where both vehicles came to rest. The total of the Farley skid marks was therefore 273 feet long. Farley testified at trial that he was traveling no more than 55 miles per hour, that he saw the Olson vehicle make a left turn from the west into his lane of travel, that at that time the Olson vehicle was about 100 feet in front of him, and that he applied his brakes.

The debris from the collision was in the northbound lane 33 feet north of the center of the intersection. The Olson car was still in first gear when it came to rest. James Walz, an eyewitness in a car traveling from the north on the Leland Spur Road, saw the Farley car approaching as Olson pulled onto the highway. He said the Farley car was “real close” when Olson pulled out and that Olson had not completed a 90-degree turn when he was struck in the right rear corner of his car.

Farley was driving an 8-cylinder 1973 Camaro and was accompanied by Cindy Catron, who was asleep. Twait’s severe brain injuries resulted in lowered intelligence, impaired space perception, altered personality, impaired speech and coordination, and an inability to be employed or to care for himself. Twait was 17 years old at the time of the accident and had been a popular and successful high school athlete, and a good student.

There is no question of contributory negligence on the part of the plaintiff. Also, this trial took place during June of 1980 prior to the Illinois Supreme Court decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which promulgated the doctrine of comparative negligence in all negligence cases in which trial commences on or after June 8,1981.

Plaintiff’s theory of liability was that both defendants were negligent in that defendant Farley was traveling at an outrageously excessive speed and that defendant Olson misjudged Farley’s speed when he pulled out onto the Leland Blacktop in front of Farley’s oncoming car. Olson’s defense was that it was Farley’s negligence that caused the accident and that Olson acted reasonably at the time he turned onto the Leland Blacktop. Farley, on the other hand, defended on the theory that he was traveling at a reasonable rate of speed along a preferential roadway, that Olson suddenly pulled out in front of his vehicle when he was only about 100 feet south of the intersection, and that the collision occurred when Olson’s vehicle had not yet completed its turn. The jury accepted Olson’s version of the accident, thereby rejecting the testimony of Farley and his witnesses.

Upon appeal Farley contends, first, that the trial court should have granted his motion for directed verdict because he (Farley) could not have been guilty of negligence under the circumstances where he was the driver of an automobile on a preferential highway with the right to expect any automobile approaching on the secondary road controlled by a stop sign to obey the stop sign and yield the right-of-way, as required by law. Farley relies upon Hale v. Craven (1970), 129 Ill. App. 2d 466, 263 N.E.2d 593, in support of his position. However, as Hale made plain, the driver on a preferential highway does not have an absolute right-of-way regardless of distances, speed, or other circumstances. (Accord, Conner v. McGrew (1961), 32 Ill. App. 2d 214, 177 N.E.2d 417.) In Pennington v. McLean (1959), 16 Ill. 2d 577, 583, 158 N.E.2d 624, 627, our supreme court said:

“[A] person approaching a preferred highway is not required to stop * * * long enough to permit any car that he observes on the highway to pass, regardless of its distance from the intersection. [Citation.] The statute requires only that the motorist confronted by a stop sign may, exercising reasonable care, proceed across the intersection after he has stopped and yielded the right of way to such vehicles on the through highway as constitute an ‘immediate hazard.’ [Citations.]

The Illinois decisions, however, do not provide a precise formula for determining whether a particular vehicle has conformed to set standards; that question must be determined by the jury [citations], and involves considerations as to relative speeds and distances of the vehicles from the intersection.”

As this court noted in Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 356 N.E.2d 445, Pennington v. McLean and Conner v. McGrew and other cases before 1967 were decided at a time when the test for directing a verdict was whether there was “any evidence” of negligence. That test was rejected in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, where the standard was held to be whether all the evidence viewed in the light most favorable to the nonmoving party so overwhelmingly favors the moving party that no contrary verdict could ever stand. In Fincham v. Cooney we went on to hold that the Pedrick decision did not change the standard of care required of a driver on a preferential highway and that the rule set forth in Pennington v. McLean and Conner v. McGrew is still valid.

The record in this case demonstrates substantial evidence of excessive speed on the part of Farley, indicating that he may have failed to exercise reasonable care in approaching and proceeding through the intersection. Farley was familiar with the terrain, having traveled the Leland Blacktop many times and having farmed a field at that intersection. There was a dip some 262 feet south of the intersection big and deep enough to conceal an automobile and adjoining the dip along the west shoulder of the road was a ten foot high embankment. Farley’s 8-cylinder vehicle was a 4-barrel carburetor, 327-cubic inch, high-performance automobile. Two residents who lived near the intersection testified that they were awakened that night by the loud roar of an engine which continued for about 10 seconds and which was followed by the squealing of tires, a crash, and then the tinkling of hubcaps on the roadway. Farley admitted that he never saw the headlights of Olson’s car but rather sighted only his taillights just before the collision. The length of the skidmarks, particularly after the impact, and the amount of debris and damage to the vehicles are additional factors indicating the tremendous speed of Farley’s vehicle.

There was contradictory evidence, too, including Farley’s testimony that he was traveling 55 miles per hour, and after reviewing all of the evidence, we find that there is evidence consistent with both plaintiff’s theory and with Farley’s theory, and, therefore, the case was an appropriate one for the jury to decide. (Fincham, v. Cooney (1976), 42 Ill. App. 3d 719, 721-22, 356 N.E.2d 319, 321.) Farley was not entitled to a directed verdict.

Farley also argues that the verdict was contrary to the manifest weight of the evidence. From our previous discussion of the evidence, we think it clear that there was substantial and, in fact, abundant evidence to support the verdict, and no reversal is required on that basis.

Next we must examine the trial rulings which defendant Farley contends were erroneous. First, defendant insists that two occasions where plaintiff’s counsel mentioned the word “insurance” were prejudicial to plaintiff’s cause and should have been grounds for declaration of a mistrial. The initial use of the word “insurance” came during voir dire when one prospective juror said he thought he remembered plaintiff’s counsel, Mr. Ferracuti, from another case, and counsel responded, “Are you sure it was not Mr. Raccuglia, he sometimes represents insurance companies?” Farley argues that Mr. Ferracuti implied to the jury that he does not represent insurance companies and thus that plaintiff was not insured. The other occasion came during closing argument when plaintiff’s counsel was arguing that plaintiff would not only be deprived of future lost wages because of his inability to work but also of fringe benefits such as health insurance, dental insurance, pensions. Then counsel said, “He’ll never buy insurance. Who is going to sell him liability insurance? He doesn’t drive a car anyway. Who is going to sell him insuranee?” Plaintiff argues that the jury might conclude from this that defendant must have been insured since he was driving and since plaintiff said no one can drive without insurance. Actually plaintiff’s counsel, in effect, said that no one buys insurance who does not drive. In both cases, different inferences could be drawn from the reference to insurance than the inferences plaintiff would draw, and thus in both situations, the matter was one for the exercise of the sound discretion of the trial court.

Not every mention of the word “insurance” during a personal injury trial requires the court to declare a mistrial. In Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 266, 362 N.E.2d 446, 451, the court reviewed the traditional rule against disclosure of insurance coverage and then observed:

“With the passing of years, however, and the almost universal prevalence of automobile liability insurance, has come an increasing judicial tolerance toward references to insurance. Where a finding of liability has a complete basis in the evidence and the damage award is reasonable, the courts will conclude that the jury was not prejudiced by the remark.”

Furthermore, we think it significant that neither mention of insurance here referred to defendant Farley’s possible insurance coverage. It is an indication that defendant is insured that is particularly prejudicial. (Cf. Pinkerton v. Oak Park National Bank (1958), 16 Ill. App. 2d 91, 97-98, 147 N.E.2d 390, 394.) We cannot say that the trial court abused its discretion declining to declare a mistrial because of these two oblique references to insurance.

Farley next contends that the trial court erred in permitting evidence to be introduced which indicated that Farley’s family farmed the field at one of the corners of the intersection. One of the photographs which was introduced into evidence for the purported purpose of showing Farley’s familiarity with the terrain included the field at the northwest corner which Farley stated he had personally farmed. He insists that this must have impressed the jury with the fact that he had the “deep pocket” in this case. There was no objection to the evidence, and no mention that Farley lived on the farm in question or that Farley or his family owned the farm. The number of acres involved was not mentioned. We can only conclude that the evidence here questioned was not admitted erroneously, and even if it were, any error was waived by Farley’s failure to object.

Farley’s next assertion of error is the admission into evidence of a photograph of the Farley car after it had been considerably altered by the removal of its engine. Since two other exhibits adequately demonstrated the condition of the car after the accident, the introduction of a third photograph could only serve to inflame the jury, Farley argues, since the factual situation was distorted. The admission of photographic exhibits is a matter within the discretion of the trial court, and even where substantial changes in the appearance of a scene have occurred, a photograph is admissible if the changes were explained to the jury so that the photographs are correctly understood and not misleading. (Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 388 N.E.2d 770.) Here the jury was clearly advised as to the removal of the engine in the photograph in question, and so we cannot say that the trial court abused its discretion in receiving this exhibit in evidence. Furthermore, even if the exhibit’s admission was erroneous, any error would not be prejudicial since the exhibit was merely cumulative of the matters portrayed in other exhibits.

Additionally Farley contends that he was prejudiced when plaintiff attempted to cross-examine him as to a supposed duty to decrease his speed as he approached the intersection. The question was objected to, and Farley’s objection was sustained. Since the court instructed the jury as to the applicable law, we fail to see how Farley can claim to have been prejudiced by plaintiff’s question.

Next, Farley argues that it was error to permit testimony concerning the fact that Farley’s car was a “high performance” vehicle capable of high speeds. He contends that such testimony had no probative value as to the actual speed of the car at the time of the collision. We think, to the contrary, that the type of engine was probative of the capability of Farley’s vehicle to reach the speed necessary to cause the amount of damage that was done and further was corroborative of the testimony concerning the loud noise of the engine which awakened two neighbors just prior to the crash. The court did not err in overruling Farley’s objection to this evidence.

Farley also assigns as error a portion of plaintiff’s closing argument which allegedly singled out one or two jurors by age category. Of course, it is improper to address individual jurors in an attempt to play upon their personal circumstances and fears. Here the comment came after counsel had told the jury that they would have to rely upon their experience to determine what wages a young man such as plaintiff might be expected to receive on the average. Counsel then said, “We have a 20-year-old or two, I think on this jury. We have at least one.” Counsel then discussed possible starting wages for factory work. We would agree that a direct reference to particular members of the jury would be improper, but we cannot say the comments here were a direct reference, or in any event, amounted to reversible error. In the context of the entire trial, these remarks could hardly be said to have prejudiced Farley so plainly as to justify a new trial.

Farley’s next assertion of error is plaintiff’s final argument reference to inflation. Counsel asked the jury to consider what wages were 10 or 15 years ago, to consider that they have doubled since that time, and to think of what they would be 10 years from now. Generally, if there is other proper evidence sufficient to support the verdict, a reviewing court will not consider as error evidence or arguments of future inflationary trends which may be speculative. (Kapelski v. Salton & Southern R.R. (1976), 36 Ill. App. 3d 37, 46-47, 343 N.E.2d 207, 214.) Since Farley also claims that the award of $550,000 damages was excessive and contrary to the manifest weight of the evidence, we must examine the excessive damages issue before considering whether the indirect reference to inflationary factors was reversible error.

Interestingly, Farley does not dispute any of the evidence concerning medical expenses or injuries, but rather contends that the trial errors previously discussed were calculated to cause the jury to determine damages under the influence of passion and prejudice. The record discloses that plaintiff asked for damages in excess of $1,000,000; that medical expenses to date exceed $49,000; that plaintiff’s life expectancy is 50.5 years; that plaintiff is permanently and severely incapacitated from performing gainful employment and from caring for himself; that his intellect, emotions, memory, and spatial perception are seriously and permanently impaired. The photographs of plaintiff before and after the accident and the testimony of medical and family witnesses make clear that plaintiff’s injuries were so devastating as to totally destroy any hope for a useful life. Applicable to this case are the words of the Supreme Court of Illinois affirming an award of $750,000 to a 28-year-old plaintiff who lost both legs: “One cannot certainly assess in financial terms these human tragedies, but one can conclude that the award here was not excessive.” (Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 444, 283 N.E.2d 230, 239.) In Raines, as here, the court was called upon to consider the propriety of a reference to inflation, and the court ruled that the verdict was amply supported by other evidence. We believe the same to be true in the case before us.

Finally, defendant Farley asserts that the cumulative effect of the errors alleged deprived him of a fair trial. As our previous discussion of Farley’s contentions indicates, we believe that he did receive a fair trial and that any errors were either waived or were so inconsequential as to have not been prejudicial — whether considered singly or together.

For the reasons stated, we affirm the judgment of the Circuit Court of La Salle County.

Affirmed.

SCOTT, P. J., concurs.