{ "id": 2924391, "name": "JAMES Q. McGRATH, Appellant, v. ALFRED J. ROHDE et al.-(Alfred J. Rhode, Appellee.)", "name_abbreviation": "McGrath v. Rohde", "decision_date": "1972-10-02", "docket_number": "No. 44088", "first_page": "56", "last_page": "62", "citations": [ { "type": "official", "cite": "53 Ill. 2d 56" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "46 Ill.2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2900056 ], "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0465-01" ] }, { "cite": "37 Ill.2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "130 Ill.App.2d 596", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2828480 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0596-01" ] } ], "analysis": { "cardinality": 559, "char_count": 11675, "ocr_confidence": 0.861, "pagerank": { "raw": 2.712289274469362e-07, "percentile": 0.8294265418563013 }, "sha256": "0653549da14f3a50a2d9f61d0fb45bad1ca97f671101e94ed5064ae578ab22ac", "simhash": "1:c3aa6c2db2c46451", "word_count": 1999 }, "last_updated": "2023-07-14T22:46:18.842794+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES Q. McGRATH, Appellant, v. ALFRED J. ROHDE et al.\u2014(Alfred J. Rhode, Appellee.)" ], "opinions": [ { "text": "MR. JUSTICE WARD\ndelivered the opinion of the court:\nThe plaintiff, James Q. McGrath, brought suit in the circuit court of Du Page County against Alfred J. Rohde and William Link, on his own behalf, as the administrator of the estates of Bonnie McGrath and Matthew McGrath, and as the father and next friend of Michael McGrath and Julia McGrath. The plaintiff sought to recover for the wrongful deaths of two of his children, Bonnie and Matthew, for his own injuries and for injuries sustained by two of his other children, Julia and Michael. The claims arose from a collision involving three vehicles on November 28, 1965, on the Lake Street extension of the Eisenhower Expressway. Prior to trial, on the plaintiff\u2019s motion, the defendant Link was dismissed from the suit. At the close of the plaintiff\u2019s case the trial court granted defendant Rohde\u2019s motion for a directed verdict, and on appeal the appellate court affirmed the judgment which had been entered. (McGrath v. Rhode, 130 Ill.App.2d 596.) We granted the plaintiff\u2019s petition for leave to appeal.\nThe plaintiff and his four children at about 9:40 P.M. were driving in a westerly direction on the Lake Street extension of the Eisenhower Expressway in the plaintiff\u2019s station wagon. He passed Link\u2019s car about 100 feet east of the point at which the Tri-State Tollway passes over the extension. Link at the time was in the left lane traveling at about 55 miles per hour and the plaintiff was in the right lane driving at about 60 miles per hour. The plaintiff then turned into the left lane, passed the station wagon of Rohde, whom we shall refer to as defendant, and returned to the right lane. It was after the plaintiff had returned to the right lane that his vehicle struck an abutment, which is part of the protective railing where the Lake Street extension bridges certain railroad tracks and a road. The evidence shows that on striking the abutment, the plaintiff\u2019s wagon was thrown up and pivoted in a clockwise direction, with its front end at the place of impact as the pivot point. The defendant applied brakes and swerved to the left in an attempt to avoid hitting the wagon, but he struck it while it was still in the air. The right front fender of the defendant\u2019s vehicle hit the descending right rear side of the plaintiff\u2019s wagon. This impact forced the defendant\u2019s wagon into the left lane and into the path of the car driven by Link, and that car\u2019s right front fender hit the defendant\u2019s left front door. The plaintiff and Michael and Julia McGrath were injured seriously. The injuries to the other two children, Bonnie and Matthew, were fatal.\nThe plaintiff testified that at the site of the collisions the Eisenhower Lake Street extension is graded and curves to the right, i.e., to the north, changing the direction of traffic from west to north. At the time of the collision the three vehicles were traveling north. He testified that he had observed the tailgate and rear bumper of his wagon earlier on the day concerned and that they were undamaged. He recalled passing to the right of one car, passing a second vehicle on the left and then returning to the right lane about 100 feet from the abutment. His next recollection was awakening in the hospital. He had been unconscious for about three days. He testified that after the collision he had no memory of anything that had occurred after he had left his mother\u2019s house. (He was returning from a visit to his mother\u2019s home at the time of the accident.) After receiving hypnotic treatment from a physician he was able to recall the events preceding the collision but not the collision itself.\nThe plaintiff at trial called the defendant under section 60 of the Civil Practice Act (Ill.Rev.Stat. 1965, ch. 110, par. 60) as an adverse witness. The testimony of the defendant, who had been driving with his two sons, as to the vehicles\u2019 positions prior to the collisions was essentially the same as the plaintiff\u2019s. He said that he was traveling about 45 to 50 miles per hour and was just coming from under an overpass when the plaintiff passed him at a point about 700 feet from the abutment, which the plaintiff later struck. He said that the plaintiff\u2019s wagon, in passing his, came very close to the side of his wagon as the plaintiff was moving into the right lane in front of him. He immediately braked and there was no contact between the two wagons until after the plaintiff had driven into the abutment. He testified that, as the plaintiff\u2019s wagon flew up and turned clockwise, he swerved to the left but struck the plaintiff\u2019s wagon as it was descending. He testified that this was the only contact between the two wagons but that Link\u2019s car then crashed into the left side of his vehicle. The defendant testified that though he had previously said at the inquest that the collision with Link\u2019s car had occurred about five seconds after his collision with the plaintiff\u2019s wagon, he realized he had been in error and that the interval between the two collisions was less th\u00e1n 5 seconds. On examination by his own attorney the defendant said that his wagon was about five or six car lengths from the abutment when the plaintiff cut in front in him, and that he was four, five or six car lengths behind the plaintiff\u2019s wagon when the plaintiff hit the abutment. His estimate was that four, five or six car lengths was 20 to 30 feet. He testified that his vehicle never came into contact with the rear end of the plaintiff\u2019s wagon.\nPhotographs, taken at the scene within a half hour after the collisions and introduced into evidence by the plaintiff, showed that in addition to the extensive damage to the plaintiff\u2019s wagon, especially to its right front and side, the middle of the tailgate was punctured and the middle of the rear bumper was crumpled. After the parties had stipulated concerning the extent of the injuries and certain damages, the plaintiff called Marvin Salzenstein to testify as a reconstruction expert. When the defendant\u2019s objection to Salzenstein\u2019s testifying was sustained, the plaintiff made an offer of proof. According to it if the expert were allowed to testify, he would testify that he had examined photographs of the accident that were already in evidence, and that he had examined the scene and wagons of the same models as those of the plaintiff and the defendant. He would have expressed the opinion that the damage to the rear bumper and tailgate of the plaintiff\u2019s vehicle could not have been sustained if the collision between the wagons had occurred as the defendant had testified it did. He would have testified that his opinion was that the rear of the plaintiff\u2019s wagon had been damaged prior to the collision with the abutment and that the defendant\u2019s wagon could have caused the damage if its right front corner had struck the rear of the plaintiff\u2019s wagon. To explain the fact that the photos showed no damage to the front bumper of the defendant\u2019s wagon, the witness would have testified that in order for the defendant\u2019s bumper, which was undamaged, to have been damaged, the speed of his wagon would have had to have been five to ten miles per hour in excess of the speed of the plaintiff\u2019s wagon at the time of the impact.\nAfter the offer of proof had been placed in the record the court allowed the defendant\u2019s motion for a directed verdict on the basis of the rule of Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510. In Pedrick directed verdicts are authorized \u201cin those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d\nThe basic contention of the plaintiff is that the testimony of the accident reconstruction expert was improperly excluded.\nThe defendant could not have given testimony here because of the provisions of the statute commonly known as the Dead Man\u2019s Act (Ill.Rev.Stat. 1965, ch. 51, par. 2), had not the plaintiff called him as a witness under the provisions of section 60 of the Civil Practice Act (Ill.Rev. Stat. 1965, ch. 110, par. 60). The Dead Man\u2019s Act specifically provides that a party to an action who may not otherwise testify under the Act may do so when called as a witness by the adverse party. Section 60 provides: \u201cUpon the trial of any case any party thereto or any person for whose immediate benefit the action is prosecuted or defended, or the officers, directors, managing agents or foreman of any party to the action, may be called and examined as if under cross-examination at the instance of any adverse party. The party calling for the examination is not concluded thereby but may rebut the testimony thus given by countertestimony and may impeach the witness by proof of prior inconsistent statements.\u201d\nAs the section gives the right to rebut the testimony given by the party called, the plaintiff says that the testimony of his expert should have been admitted.\nHowever, any rebuttal must be through admissible evidence. We have said that reconstruction testimony may not be used as a substitute for eyewitness testimony where the latter testimony is available, unless \u201cit is necessary to rely on knowledge and application of principles of science beyond the ken of the average jurors.\u201d (Plank v. Holman, 46 Ill.2d 465, 471.) Here the eyewitness testimony of the defendant was made \u201cavailable\u201d by the deliberate choice of the plaintiff in calling him to testify under section 60. That the plaintiff chose to call the defendant as a witness did not eliminate or diminish the standards of admissibility for reconstruction expert evidence. In addition, as the defendant points out, the plaintiff in his answer to interrogatories identified William Link and a Mr. and Mrs. James Carpenter, who were in a fourth vehicle which was not involved in the collision, as eyewitnesses.\nThe questions for the jurors here did not require a scientific knowledge beyond that of typical jurors. The questions involved the driving actions of the plaintiff and defendant at the time, and here a factual determination of these questions did not necessitate expert evidence to supplement the eyewitness testimony available.\nWe are not persuaded by the plaintiff\u2019s argument that Salzenstein should have been permitted to testify, simply as a witness and not as a reconstruction expert, as to measurements he made of wagons of the same year and model as those of the plaintiff and defendant. It is said that this would have shown that the protruding surfaces of the defendant\u2019s front bumper and headlight rim matched in height the damage sustained by the plaintiff\u2019s rear bumper and tailgate.\nWe consider, however, that the evidence of these measurements was offered as a basis for expert testimony to be given by Salzenstein. That this was to be a basis for expert testimony is illustrated by the statement of plaintiff\u2019s counsel to the trial court that \u201cThis is something beyond the ken of the jury.\u201d We need not consider an additional problem that there is nothing to suggest that the measurements referred to were not common to other vehicles of different makes, models and years of manufacture.\nFor the reasons given the judgment of the appellate court is affirmed.\nJudgment affirmed.\nMR. JUSTICE DAVIS took no part in the consideration or decision of this case.", "type": "majority", "author": "MR. JUSTICE WARD" } ], "attorneys": [ "JACK F. CLIFFORD and JOSEPH M. O\u2019CALLAGHAN, both of Chicago, for appellant.", "RATHJE, WOODWARD, DYER & BURT, of Wheaton (PETER A. ZAMIS, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 44088.\nJAMES Q. McGRATH, Appellant, v. ALFRED J. ROHDE et al.\u2014(Alfred J. Rhode, Appellee.)\nOpinion filed Oct. 2, 1972.\nRehearing denied Nov. 29, 1972.\nDAVIS, J., took no part.\nJACK F. CLIFFORD and JOSEPH M. O\u2019CALLAGHAN, both of Chicago, for appellant.\nRATHJE, WOODWARD, DYER & BURT, of Wheaton (PETER A. ZAMIS, of counsel), for appellee." }, "file_name": "0056-01", "first_page_order": 100, "last_page_order": 106 }