{
  "id": 1594831,
  "name": "Robert Sawchyn, a Minor, by John Sawchyn, His Father and Next Friend, and John Sawchyn, Individually, Plaintiffs-Appellants, v. Clarence Samlow, Defendant-Appellee",
  "name_abbreviation": "Sawchyn v. Samlow",
  "decision_date": "1969-04-16",
  "docket_number": "Gen. No. 52,265",
  "first_page": "363",
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    "id": 8837,
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    "name_long": "Illinois",
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    {
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      "reporter": "N.E.2d",
      "year": 1967,
      "opinion_index": 0
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      "cite": "213 NE2d 584",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1966,
      "opinion_index": 0
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      "cite": "66 Ill App2d 435",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
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      "year": 1966,
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "190 NE2d 305",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "27 Ill2d 551",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
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      "year": 1963,
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "186 NE2d 157",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1962,
      "opinion_index": 0
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    {
      "cite": "38 Ill App2d 19",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
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        5256565
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  "last_updated": "2023-07-14T17:08:29.509800+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "ENGLISH and McNAMARA, JJ., concur."
    ],
    "parties": [
      "Robert Sawchyn, a Minor, by John Sawchyn, His Father and Next Friend, and John Sawchyn, Individually, Plaintiffs-Appellants, v. Clarence Samlow, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE STAMOS\ndelivered the opinion of the court.\nPlaintiffs brought suit to recover damages occasioned by the alleged negligence of defendant in the operation of his motor vehicle. Plaintiffs\u2019 complaint was in two counts. Count I was to recover personal injuries suffered by Robert Sawchyn (hereinafter referred to as plaintiff), and in Count II John Sawchyn, plaintiff\u2019s father, sought to recover for property damage to his automobile. After a bench trial the court entered judgment for defendant. Plaintiff presents the following issues for review: that the trial court, erred in finding for defendant against the manifest weight of the evidence, improperly ruled on objections, deprived plaintiffs of a fair trial and failed to find defendant guilty of negligence as a matter of law.\nThe collision occurred in the northwest quadrant of the uncontrolled intersection of Melrose and Melvina Streets in the City of Chicago. Melrose runs east and west; Melvina runs north and south. Each is 30 feet wide and located in a residential area. The intervening corner had shrubs and trees, with heavy and low hanging branches. Photographs reveal that this tended to obscure and interfere with a motorist\u2019s view.\nPlaintiff, then 16 years of age, was operating his father\u2019s motor vehicle in a westerly direction on Melrose Avenue. At the time of the collision plaintiff had about eight months\u2019 driving experience totaling approximately 800 miles. Defendant was operating his motor vehicle southbound on Melvina Avenue, thus approaching the intersection from plaintiff\u2019s right. It was a sunny, dry day. There were two impacts. The first involved the left front portion of defendant\u2019s motor vehicle with the right front portion of plaintiff\u2019s motor vehicle. The second impact involved the left rear portion of defendant\u2019s motor vehicle with the right rear portion of plaintiff\u2019s motor vehicle.\nPlaintiff\u2019s vehicle came to rest 5 or 6 feet south of the center of Melrose, facing west with its rear portion blocking the west crosswalk. It had traveled 16 to 20 feet from the location of the first impact. Defendant\u2019s vehicle came to rest facing a westerly direction on Melrose, with the rear of the vehicle still in the northwest quadrant, 1 or 2 feet north of the center of Melrose Avenue. Defendant\u2019s vehicle was the only one that made any skid marks. The skid marks started just west of the center of Melvina and north of the north crosswalk of the intersection, continued south into the intersection to within a few feet north of the center of Melrose and then curved sharply westward for about 5 or 6 feet. A police officer testified the skid marks measured 50 feet in total length. There is no evidence as to whether the measurement was made from the rear wheels or front wheels of defendant\u2019s vehicle or, as would seem likely from the photograph, from a combination of front and rear wheels. Thirteen photographs depicting views of the intersection, streets, skid marks and the vehicles were placed in evidence. There were no eyewitnesses to the collision other than plaintiff and defendant.\nPlaintiff testified that as he approached the intersection he slowed down when he was 50 feet from the east curb of Melvina, to a speed of 15 to 20 miles per hour. He was able to see only 50 to 60 feet north on Melvina, because there was a tree in front of the house on the corner which blocked his view.\nPlaintiff testified further that he continued watching in the same direction until he could see between the tree and the house; he then could see the west side of the Melvina pavement for about 150 feet north of the north line of Melrose. He observed no vehicles either parked or in motion on the west side of Melvina. At this time, the front of his vehicle was about 30 feet east of the east curb line of Melvina. Plaintiff looked to his left, that is south, then straight ahead, and began to accelerate through the intersection.\nPlaintiff testified that as the front of his vehicle crossed the midline of Melvina he suddenly heard a screeching of brakes and saw out of the side of his eye a black flash that came up from his right side and the impact of the vehicles occurred. Plaintiff testified his vehicle at the moment of impact was moving between 20 to 25 miles per hour and that he never saw defendant\u2019s vehicle until he heard the screech of brakes.\nDefendant testified he was going south on Melvina at about 20 to 25 miles per hour. When he was about 100 feet from the intersection he glanced left and right and did not observe any traffic. When he came within 50 or 60 feet of the intersection he again looked left and right and did not observe any traffic. As the front of his vehicle approached the north line of the north sidewalk on Melrose he looked to his left and saw plaintiff\u2019s vehicle approaching at approximately 40 miles per hour, at which moment his own vehicle was moving at about 15 miles per hour. Defendant observed the plaintiff at this moment was 90 to 80 feet from defendant\u2019s vehicle at which time defendant testified he applied his brakes and brought his vehicle to a stop just a fraction of a second before the impact.\nPlaintiff charges that the trial court erred in its concept of the law; that skid marks are some evidence of speed when coupled with other evidence of speed, otherwise they are meaningless and should not be considered. Plaintiff argues that the trial court\u2019s misconception of the law on this point was manifested during plaintiff\u2019s argument, when the court stated:\n\u201c. . . skid marks by themselves are insufficient to establish speed without expert testimony.\u201d\nPlaintiff\u2019s argument is that he was not endeavoring to establish a fixed rate of speed in violation of any speed laws, but whether defendant at the time of the occurrence was operating his vehicle at a speed greater than was reasonable and proper under existing traffic conditions. Plaintiff argues that 50 feet of skid marks is evidence of defendant\u2019s negligence in traveling at a speed that was greater than reasonable and proper and should be accepted as such by the trier of fact without an expert.\nPlaintiff argues that the court\u2019s concept of the law was tantamount to directing a verdict for defendant. We do not agree with plaintiff. On the motion to vacate and for a new trial, the court in a colloquy with plaintiff\u2019s counsel said:\nThe Court: \u201cI want you to know right now, my finding, based on the fact that I find the 50 feet of skid marks, to me is not evidence of excessive speed. Now, that was my finding on that score. . . .\n\u201c. . . Just remember this, your 50 feet came into evidence, and if you have a jury, a jury would have determined whether 50 feet of skid marks was evidence of excessive speed, and in the same way, I came to a conclusion. As a matter of fact, to me it was not evidence of speed, excessive speed, let\u2019s say that.\u201d\nThe foregoing recitation by the trial court obviates the argument that the trial court determined skid mark evidence in this case was meaningless.\nPlaintiff complains that the trial judge considered technical evidence predicated upon the court\u2019s personal knowledge. Plaintiff makes recourse to his post-trial arguments, when another colloquy between the court and plaintiff\u2019s counsel reveals the following:\nPlaintiff\u2019s counsel: \u201c. . . If the Court does not want to say that 50 feet of skid marks is evidence of excessive speed, if the Court says that is immaterial, then I cite the defendant in this case did not have adequate brakes, otherwise he would have been able to stop his car within that 50 feet.\u201d\nThe Court: \u201cI think you ought to have it in the record here: See, if you don\u2019t have brakes, good brakes, it is impossible to lock them up.\n\u201cNow, let that stand in there. This is my personal observation over a period of years driving race cars, what I have observed about brakes. That is common knowledge too among people, mechanics and various people.\u201d\nResort to plaintiff\u2019s closing argument reveals that plaintiff\u2019s counsel had said:\n\u201cNow, your Honor knows very well from your own experience that at 15 miles to an hour you are going to bring your car to a stop much sooner than that.\u201d\nPlaintiff invited the court to consider its personal experience in the operation of a motor vehicle. The court responded:\n\u201cI do not so know. That isn\u2019t my experience. Do you know what causes a skid? When you lock up all your brakes your car goes into a skid.\u201d\nPlaintiff complains that the trial court\u2019s interruptions during arguments before the finding and at the post-trial proceedings deprived plaintiff of a fair, impartial trial and he was deprived of an orderly, well preserved argument because of interruptions by the trial court which disrupted plaintiff\u2019s train of thought and logical presentation of his argument. Plaintiff earnestly urges that the court\u2019s conduct destroyed the effect of his argument and should require a reversal. We find that most, if not all, of the points raised by plaintiff as error, are products of colloquies between plaintiff\u2019s counsel and the trial court. The trial transcript does not reveal any merit to plaintiff\u2019s contentions under this point.\nPlaintiffs argue that the trial court disregarded defendant\u2019s testimony in not finding defendant guilty of negligence as a matter of law. Under this point plaintiffs contend defendant\u2019s testimony reveals that he failed to keep a proper and sufficient lookout, and after danger to plaintiff was imminent failed to deviate from the collision course.\nThe defendant\u2019s testimony did not establish as a matter of law that after he discovered the dangerous situation he could have done any more than applying his brakes, as he did, to attempt to avoid the impending collision. As mentioned, the 50 feet of skid marks included 5 or 6 feet at almost a right angle at the point of collision, indicating either that this change in course was accomplished by defendant as an evasive maneuver, or that the change in direction was brought about by the collision, thus reducing the length of the skid marks on which the plaintiff bases his argument from 50 feet to 44 or 45 feet if all the marks were made by the front wheels, or to about 34 feet if they were made by both front and rear wheels. Whether or not defendant took proper preeautions after he discovered plaintiff\u2019s vehicle under the principle of discovered peril and failure to act is a factual question. Rothacher v. Jones, 38 Ill App2d 19, 186 NE2d 157 (1962). Likewise, neither did defendant\u2019s testimony establish as a matter of law that defendant failed to keep a proper lookout. Whether or not a proper lookout was maintained is a factual question. Moss v. Wagner, 27 Ill2d 551,190 NE2d 305 (1963).\nPlaintiff also urges that the finding in favor of the defendant was against the manifest weight of the evidence. We hold it was not. The Appellate Court should not substitute its judgment for that of the trial judge who heard the witnesses where there is sufficient evidence upon which the trial judge could base his finding and his finding is not against the manifest weight of the evidence. Busch v. United States Fire Ins. Co., 66 Ill App2d 435, 213 NE2d 584 (1966), Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 226 NE2d 624 (1967).\nWe hold that the trial court properly entered judgment for defendant.\nJudgment affirmed.\nENGLISH and McNAMARA, JJ., concur.",
        "type": "majority",
        "author": "MR. JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "Anton W. Makar, of Chicago, for appellants.",
      "Joseph A. Bailey, of Chicago (J. Stanley Clark, of counsel) , for appellee."
    ],
    "corrections": "",
    "head_matter": "Robert Sawchyn, a Minor, by John Sawchyn, His Father and Next Friend, and John Sawchyn, Individually, Plaintiffs-Appellants, v. Clarence Samlow, Defendant-Appellee.\nGen. No. 52,265.\nFirst District, Fourth Division.\nApril 16, 1969.\nRehearing denied May 19,1969.\nAnton W. Makar, of Chicago, for appellants.\nJoseph A. Bailey, of Chicago (J. Stanley Clark, of counsel) , for appellee."
  },
  "file_name": "0363-01",
  "first_page_order": 369,
  "last_page_order": 376
}