{ "id": 3184076, "name": "GRAZIELLA CASCIOLA, Plaintiff-Appellant, v. SAMUEL C. GARDNER, Defendant-Appellee", "name_abbreviation": "Casciola v. Gardner", "decision_date": "1980-07-14", "docket_number": "No. 79-2355", "first_page": "880", "last_page": "888", "citations": [ { "type": "official", "cite": "86 Ill. App. 3d 880" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "210 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2884532 ], "weight": 2, "pin_cites": [ { "page": "105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0103-01" ] }, { "cite": "71 Ill. 2d 615", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "375 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3358341 ], "year": 1978, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0342-01" ] }, { "cite": "101 N.E. 539", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "540" } ], "opinion_index": 0 }, { "cite": "258 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4724936 ], "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill/258/0389-01" ] }, { "cite": "374 N.E.2d 215", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5624615 ], "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0116-01" ] }, { "cite": "69 N.E.2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "395 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2468816 ], "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill/395/0389-01" ] }, { "cite": "243 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "41 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851238 ], "year": 1946, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0336-01" ] }, { "cite": "83 N.E.2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "402 Ill. 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2616176 ], "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0046-01" ] }, { "cite": "264 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "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": "289 N.E.2d 619", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "53 Ill. 2d 56", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2924391 ], "year": 1970, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0056-01" ] }, { "cite": "392 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983361 ], "weight": 2, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0353-01" ] }, { "cite": "357 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 140", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435843 ], "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0140-01" ] }, { "cite": "71 Ill. 2d 601", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "369 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 82", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3399049 ], "year": 1978, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0082-01" ] } ], "analysis": { "cardinality": 869, "char_count": 19706, "ocr_confidence": 0.897, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47131956341856224 }, "sha256": "26e38fa1f0b972d51867f987b33bdb4ecadd05f541119c71786326f95393d613", "simhash": "1:ba6130c47e44fd6d", "word_count": 3359 }, "last_updated": "2023-07-14T21:36:08.867369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GRAZIELLA CASCIOLA, Plaintiff-Appellant, v. SAMUEL C. GARDNER, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nGraziella Casciola (plaintiff) obtained leave to appeal from an order granting a new trial in plaintiff\u2019s action for personal injuries (Ill. Rev. Stat. 1979, ch. 110A, par. 306), against Samuel Gardner (defendant). A jury awarded plaintiff $25,000 in compensatory damages.\nIn this court, plaintiff urges the trial court abused its discretion in granting defendant a new trial because defendant did not object to expert testimony offered by plaintiff and defendant did not raise this objection until his amended post-trial motion.\nDefendant urges plaintiff has failed to file a complete record under Supreme Court Rule 306(b) so that it is impossible for this court to determine whether the trial court abused its discretion in granting a new trial; the trial court determined the trial was unfair even though no objection was made by defendant to the prejudicial testimony and the testimony of the expert was prejudicial.\nThe record before us shows Harrison Street runs east and west. At its intersection with Morgan Street, it is four lanes wide with two lanes eastbound and two westbound. There is a lane wide tree-lined median between the east and westbound lanes. The median narrows on both sides to make room for left turn lanes.\nPlaintiff testified, through an interpreter, that on December 19,1974, at approximately 4:15 p.m., she was walking home from work with a friend. They were about to cross south from the north curb of Harrison, 120 feet west of the intersection with Morgan. Plaintiff and her friend looked at both sides of the street. They saw no traffic approaching from the left. They crossed one lane and were about two or three steps from the median when plaintiff was struck by a vehicle. Plaintiff\u2019s friend escaped injury. Plaintiff further testified she had looked to her left several times as she was crossing but did not see any vehicle until just before she was hit. At that point, she saw the car coming \u201cvery fast\u201d.\nWeymen L. Edwards, assistant dean at University of Illinois, testified he was in a parking lot adjacent to Harrison Street. He was about to get into his car when he heard the screech of brakes. He then heard an \u201cimpact,\u201d looked up, and saw a dark object flying through the air 17 to 20 feet off the ground. He saw defendant\u2019s car \u201cresting\u201d against a fire hydrant. Immediately in front of the car, he saw \u201ca person lying on the grass.\u201d He noticed defendant had left the car and had run towards plaintiff, who was lying on her side in the median behind the car. Two people in the back seat of the car threw beer cans out of the car onto the lawn.\nRoger Clawinski, age 31, who had been driving a car for approximately 15 years, testified he was in his car on Morgan Street heading southbound. He stopped at a red light at the intersection with Harrison. As his light turned green, he saw defendant\u2019s car \u201crun the light going westbound on Harrison Street at a high rate of speed.\u201d Clawinski estimated the speed of defendant\u2019s car as 65 miles an hour. Clawinski then saw defendant\u2019s car go from the left lane \u201cup onto the sidewalk with sparks flying out from underneath the car.\u201d\nWard Swenson testified he was waiting for a bus on the south side of Harrison approximately 300 to 400 feet east of Morgan. He observed defendant\u2019s car going west at \u201cover 60 miles an hour.\u201d As the car approached the intersection, \u201cthe light changed.\u201d The light was red when defendant\u2019s car went through the intersection.\nMelvin Walker testified he is an officer for the University of Illinois Police Department. He was called to the scene of the accident. When he arrived, he saw plaintiff sitting on the curb of the median. He questioned defendant who admitted he was the driver of the vehicle involved in the accident. He asked defendant how fast he had been going. Defendant replied, \u201cAround 40, 45 miles an hour.\u201d Walker stated the speed limit on Harrison is 30 miles an hour.\nOfficer James Monahan of the Chicago police department testified he arrived at the scene just as plaintiff was being taken away in an ambulance. In his investigation, he measured the skid marks left by defendant\u2019s vehicle. A diagram was introduced into evidence which purported to show the path of the skid marks from the point of impact with plaintiff across two lanes of traffic up onto the curb on the north side of Harrison. The skid marks started approximately 30 feet before the point of impact with plaintiff. On direct examination, Monahan testified he measured 229 feet of skid marks. However, on cross-examination, he stated the skid marks could have been only 191 feet long. He also testified the road was dry.\nThad L. Aycock, assistant supervisor and instructor at Northwestern University Traffic Institute, testified for plaintiff as an expert witness as to his estimate of the speed of defendant\u2019s vehicle based on the length of skid marks found after the accident. He stated, based on the type of roadway surface on Harrison, the type of vehicle skidding, the pavement being dry, and the length of skid marks of defendant\u2019s car being 191 feet, in his opinion the speed of defendant\u2019s vehicle was between 56 and 63 miles an hour. Assuming 229 feet of skid marks, in his opinion the speed would be between 61 and 69 miles an hour. Aycock also made a calculation based on the length of skid marks being 203 feet. In his opinion, this speed was between 58 and 65 miles an hour.\nJohn Johnson testified he was a passenger in defendant\u2019s car. He was seated in the front passenger side. As defendant drove westbound on Harrison, Johnson was turned around and talking to his brother, who was sitting in the back seat of the car. The car was traveling \u201capproximately 30, 35, 40 miles an hour.\u201d When the car was 20 to 30 feet away from the intersection with Morgan Street, Johnson noticed the traffic light was green. He did not see the light turn yellow or red. After going through the intersection, the car swerved and there was an impact. At that time, Johnson did not know what had caused the impact. He had not seen any pedestrians attempting to cross the street in front of the vehicle. He ascertained later the impact was caused when the car hit a pedestrian. After the occurrence, Johnson asked defendant what had happened. Defendant told him, \u201c \u2018A lady stepped out from the curb in front of me and come across the street.\u2019 \u201d\nDefendant testified he was traveling \u201cabout 30, 35 miles an hour\u201d as he approached the intersection of Harrison and Morgan. When he was 15 to 20 feet away, the light was green. When defendant\u2019s car was in the intersection, the light turned yellow. At that time, defendant saw pedestrians at the intersection about halfway down the block. After he went through the intersection, he saw one pedestrian run across the street when he was 20 to 30 feet away from her. At this point, the pedestrian was more than halfway across the westbound lanes. Defendant swerved to the right to try to miss the pedestrian. However, the car struck the pedestrian. Defendant lost control of his car and hit a fireplug. Defendant stated the pedestrian he struck was not plaintiff. When he got out of his car after it came to a stop, defendant observed plaintiff sitting on the curb of the median behind the car.\nDefendant further testified the road was a \u201clittle wet\u201d because it had snowed the day before. Defendant admitted he pleaded guilty to speeding or negligent driving stemming from this accident but that was because of \u201cignorance to the law.\u201d Someone instructed him to plead guilty. He stated if he knew the consequences of pleading guilty, he would not have done so.\nIn addition to the general verdict for plaintiff, the jury answered \u201cNo\u201d to a special interrogatory as to whether plaintiff was guilty of contributory negligence.\nOn September 4, 1979, defendant filed a post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial. In the motion, defendant averred plaintiff failed to prove defendant was guilty of negligence, plaintiff failed to prove she was free from contributory negligence, the court erred in giving certain instructions over objection of defendant, and the court erred in overruling defendant\u2019s objections during closing arguments. The motion also prayed that the jury\u2019s finding on the special interrogatory be set aside.\nOn September 12, 1979, defendant filed an amended post-trial motion. This added, for the first time, the contention:\n\u201cThe Court erred in overruling the Defendant\u2019s objection to Plaintiff\u2019s reconstruction expert\u2019s testimony which was based on a hypothetical question which was intended to determine the speed of the Defendant\u2019s vehicle.\u201d\nThe trial court heard oral argument on the amended post-trial motion on November 14,1979. The trial court stated it rejected the contentions of defendant with respect to all the points raised in the motion with the exception of the alleged error on the reconstruction testimony. The trial court felt letting Aycock testify was prejudicial error. The trial court accordingly vacated the special interrogatory and the verdict and granted defendant a new trial. Plaintiff then filed a motion to vacate this order. The trial court denied plaintiff\u2019s motion. The trial judge stated he had granted a new trial based not only on Aycock\u2019s testimony, but also \u201call the other testimony that was taken.\u201d\nThe record filed in this court with the plaintiff\u2019s petition for leave to appeal was not a complete record of all proceedings in this matter. It contained all the testimony of the witnesses above summarized which was pertinent to the issue of liability. The record also contained all the post-trial pleadings and transcripts of the post-trial hearings. The record did not contain the testimony of two doctors who testified as to plaintiff\u2019s injuries, the instructions tendered by the parties, the conference on instructions, or the final arguments.\nDefendant moved this court summarily to deny plaintiff\u2019s petition for leave to appeal, or in the alternative, to order plaintiff to amend the record to include the above matters not originally filed. On February 25, 1980, plaintiff not having filed objections, we denied defendant\u2019s motion summarily to deny the petition for leave to appeal but we ordered plaintiff to file a complete record. However, on March 10,1980, on motion by plaintiff, we vacated the order and directed plaintiff could proceed upon the record as filed. We added, \u201cResp. [defendant] may indicate any deficiency in its response or may move to supplement the record.\u201d\nOn March 31, 1980, defendant filed a response to the petition for leave to appeal. Defendant urged the record before us is insufficient to present the questions for review in contravention of Supreme Court Rule 306(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 306(b)), which states:\n\u201cThe record on appeal shall consist of whatever is necessary to present the questions for review and shall be filed with the petition.\u201d\nDefendant argued in his response to the petition, and reargues in his brief, that we are obliged to review all the points raised in the amended post-trial motion, and we cannot do so with the record presently before us.\nWe do not agree with defendant\u2019s argument. Defendant\u2019s amended post-trial motion makes only general statements as to the errors alleged as the basis for a new trial. The Civil Practice Act provides \u201cThe post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof \u00b0 \u00b0 (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2).) It has been repeatedly held \u201c[i]f a party fails to meet this standard of specificity the alleged error is waived on appeal.\u201d Perry v. Chicago & North Western Transportation Co. (1977), 54 Ill. App. 3d 82, 87, 369 N.E.2d 155, appeal denied (1978), 71 Ill. 2d 601, and cases there cited.\nFurthermore, to this date, defendant has not moved to supplement the record, despite having been invited to do so by our order of March 10, 1980. Moreover, in his brief, defendant has not argued the merits of any of the points raised in the post-trial motion with the exception of the one point relied on by the trial court; namely, the legal effect of the expert testimony presented by plaintiff. As above shown, the record before us is sufficient to argue virtually all of the points attempted to be raised in the defendant\u2019s amended motion for new trial. Thus, in our opinion, it is not necessary for us to consider any of the points sought to be raised in the amended post-trial motion but not argued by defendant in this court.\nIn Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 144, 357 N.E.2d 500, our supreme court held, \u201cThe decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown.\u201d Therefore, in the instant case we must determine whether the order granting a new trial constituted \u201ca clear abuse\u201d of the trial court\u2019s discretion.\nThe basis of the trial court\u2019s order granting a new trial is the decision of the supreme court in Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1. Peterson was also an automobile collision case. Eyewitness testimony to the speed of the car involved in the accident was conflicting. Based on the length of the skid marks and other factors, a police officer testified the car involved was traveling at 75 to 80 miles an hour. An expert engineer testified the car was traveling in excess of 73 miles an hour.\nThe supreme court held it was not legally proper to supplement the conflicting testimony of eyewitnesses with the expert testimony because \u201cthe speed of an automobile is not a matter beyond the ken of the average juror * * *. The jurors could draw their own conclusions on the basis of eyewitness testimony.\u201d (Peterson, 76 Ill. 2d 353, 359.) The court also held the admission of the expert testimony was not harmless error because the evidence may have convinced the jury to assign more weight to the testimony of one eyewitness over another on this \u201cclosely contested\u201d issue. The supreme court ordered a new trial. Actually, the Peterson court cited two previous supreme court decisions as authority for its position. McGrath v. Rohde (1972), 53 Ill. 2d 56, 61, 289 N.E.2d 619; Plank v. Holman (1970), 46 Ill. 2d 465, 471, 264 N.E.2d 12.\nIn the instant case, the trial judge correctly noted the applicability of Peterson in passing upon the amended post-trial motion. However, it is our considered opinion a new trial should not have been granted because of this testimony since defendant did not object to the expert testimony at any time prior to the filing of the amended post-trial motion. The record before us shows during Aycock\u2019s entire testimony only six objections were made by defendant. All of them were on specific questions by plaintiff\u2019s counsel and specific answers by Aycock. All but one of these objections were sustained and cured immediately. The other objection was overruled. At no time was any objection made by defendant to Aycock\u2019s testimony on the grounds it was prejudicial or otherwise improper upon the theory expressed in Peterson.\nIn DeMarco v. McGill (1948), 402 Ill. 46, 55, 83 N.E.2d 313, the court held:\n\u201cThe rule is that a party objecting to evidence must point out the objections specifically so as to afford the adverse party an opportunity to correct it. [Citation.] A party who seeks to exclude a piece of evidence should be explicit and disclose to the trial court all defects in the proposed proof which he expects to urge upon this court in the event of an appeal.\u201d\nSee also Haymes v. Catholic Bishop of Chicago (1968), 41 Ill. 2d 336, 342, 243 N.E.2d 203; Johnson v. Bennett (1946), 395 Ill. 389, 398, 69 N.E.2d 899.\nIn addition, no objection to this testimony was made in defendant\u2019s motions for directed verdict at the close of plaintiff\u2019s case or at the close of defendant\u2019s case. Recently, this court reiterated the long-standing rule in Illinois as regards such a situation. In Angelini v. Snow (1978), 58 Ill. App. 3d 116, 118, 374 N.E.2d 215, we stated:\n\u201cWe believe that it is well settled that questions not presented to the court during a trial may not be raised for the first time on a post-trial motion to set aside the verdict and for a new trial. [Citations.] On such a motion the only errors to be considered are those which may have intervened on the trial. \u2018It is manifest that the court could not err in reference to a matter which was not presented on the trial.\u2019 Devine v. L. Fish Furniture Co. (1913), 258 Ill. 389, 391, 101 N.E. 539, 540.\u201d\nIn view of the fact defendant did not raise the point until he filed his amended post-trial motion, he also \u201cmust be deemed to have failed to preserve this issue for appellate review.\u201d (Sprague v. Commonwealth Edison Co. (1978), 59 Ill. App. 3d 342, 350, 375 N.E.2d 493, appeal denied (1978), 71 Ill. 2d 615.) We find the allowance of a new trial in the instant case constitutes reversible error.\nDefendant also urges the trial judge may grant a new trial where he makes a determination there has not been a fair trial even though no objection is raised to the prejudicial testimony. Defendant cites Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 210 N.E.2d 191. In Freeman, two plaintiffs brought suit for injuries alleged to have been sustained when one of defendant\u2019s buses ran into the rear of plaintiffs\u2019 car. A special interrogatory asked the jury whether defendant\u2019s bus driver was guilty of negligence that proximately contributed to cause the accident. The jury answered \u201cNo\u201d but returned a verdict in favor of plaintiffs for $2500 each. The trial judge denied the post-trial motions of both parties but, on his own motion, he set aside the special finding of the jury on the ground it was against the manifest weight of the evidence and he entered judgment on the verdicts.\nThe supreme court ruled the trial court had the power to act upon its own motion and set aside the finding of the jury on the special interrogatory. The court stated that while section 68.1(2) of the Civil Practice Act \u201cconfines a litigant, upon appeal, to those matters specifically raised in the trial court, it contains nothing that suggests an intention to interfere with the power of a trial court to act upon its own motion.\u201d Freeman, 33 Ill. 2d 103, 105.\nIn our opinion, the situation presented in the case at bar is not comparable to Freeman. In Freeman, the trial court ruled the special finding of the jury was against the manifest weight of the evidence. There were no evidentiary errors to consider in so ruling. In the instant case, the trial court did not act on his own motion to set aside the special interrogatory and the verdict and grant a new trial. He acted on defendant\u2019s amended post-trial motion, relying on grounds asserted in the motion. However, those grounds, whether raised in a motion by the defendant or by the trial court\u2019s own motion, are not proper grounds for allowance of a new trial in the case at bar because of the lack of timely objection to the expert testimony, as shown above.\nAccordingly, the order granting a new trial is reversed. The cause is remanded with direction to enter judgment in favor of plaintiff upon the verdict.\nReversed and remanded with directions.\nMcGLOON and CAMPBELL, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE GOLDBERG" } ], "attorneys": [ "Ernest T. Rossiello, of Chicago, for appellant.", "Douglas & Brewer, of Chicago (Lloyd P. Douglas and Donald R. Brewer, of counsel), for appellee." ], "corrections": "", "head_matter": "GRAZIELLA CASCIOLA, Plaintiff-Appellant, v. SAMUEL C. GARDNER, Defendant-Appellee.\nFirst District (1st Division)\nNo. 79-2355\nOpinion filed July 14, 1980.\nErnest T. Rossiello, of Chicago, for appellant.\nDouglas & Brewer, of Chicago (Lloyd P. Douglas and Donald R. Brewer, of counsel), for appellee." }, "file_name": "0880-01", "first_page_order": 902, "last_page_order": 910 }