Pellico v. Jackson
| Decision Date | 10 May 1966 |
| Docket Number | Gen. No. 49919 |
| Citation | 70 Ill.App.2d 313,217 N.E.2d 281 |
| Parties | Frank J. PELLICO and Stephanie Pellico, Plaintiffs-Appellants, v. Earl JACKSON, George Boese, Sam Klevneo, a/k/a Sam Kleveno, d/b/a the Ragdoll Tavern, Shirley Oddo, d/b/a Oddo's Restaurant and Lounge, Carmen Trimarco and Frances Trimarco, Defendants-Appellees. Earl JACKSON, Counter-Plaintiff, and James Erickson, Counter-Plaintiff-Appellee, v. Frank J. PELLICO, Counter-Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Epton, McCarthy, Bohling & Druth, Gerard A. Serritella, Chicago, Bernard E. Epton, Alfred S. Druth, Gerald M. Chapman, Donald Segal, Chicago, of counsel, for appellants.
Orner & Wasserman, Chicago, Norton Wasserman, Chicago, of counsel, for appellees.
H. P. Hutul, Chicago, Arthur M. Gorov, Chicago, of counsel, for counter-plaintiff-appellee, James Erickson, and defendant-appellee Earl Jackson.
Lloyd P. Douglas, Sydney W. Hollander, Chicago, for defendants-appellees George Boese and Sam Kleveno, d/b/a/ Ragdoll Tavern.
This appeal comes from a judgment entered March 13, 1964 in the Circuit Court of Cook County following a jury verdict which found for the plaintiff Stephanie Pellico in the sum of $10,000.00 and which found for the counter-plaintiff James Erickson in the sum of $15,000.00.
The complaint as amended charged the defendant Earl Jackson with the wilful and wanton, careless and improper operation of his automobile which, it is alleged, resulted in an automobile accident in which the plaintiffs Frank J. Pellico and his wife, Stephanie, were injured. The plaintiffs alleged that they exercised due care for their own safety.
Other parties brought in as defendants in this action were George Boese and Sam Kleveno, operators of a tavern known as The Ragdoll Tavern and the Oak Park National Bank as trustee of a land trust which held title to the property on which the Ragdoll Tavern was located. Other party defendants were Shirley Oddo, the operator of a tavern known as Oddo's Restaurant and Lounge, and Carmen and Frances Trimarco as owners of the property on which Oddo's Restaurant and Lounge was located. It was alleged that the defendant Earl Jackson was sold or given intoxicating liquor at each of the above mentioned taverns which contributed to intoxication on his part, and that this intoxication contributed to the accident in which the plaintiffs were injured.
In a separate count, an action was brought by the plaintiffs Frank and Stephanie Pellico against one Dan Engels doing business as Engels Rambler Sales, in which it was alleged that Earl Jackson was an employee of Engels Rambler Sales, and that the automobile which the defendant Jackson was driving was owned by Engels Rambler Sales and was being driven with the consent of the owner and in the course of Jackson's duties as an employee.
A counterclaim was filed in this suit by Earl Jackson and James Erickson, a passenger in the Jackson car. This counterclaim alleged that Erickson and Jackson were exercising due care for their own safety and that the accident was caused by the negligence of Frank J. Pellico.
The matter went to trial on March 4, 1964 on the issues as set forth in the complaint, countercomplaint and answers. The evidence brought out at the trial was as follows:
Frank J. Pellico, one of the original plaintiffs, testified that he was driving a 1959 Mercury automobile at about 4:45 P.M. the day of the accident, April 17, 1960. This was Easter Sunday, and Mr. and Mrs. Pellico were on their way back from his sister's house when the accident occurred. He stated that he remembered that the streets were wet and that there was a very light drizzle. According to this witness, the traffic was 'very, very light.'
This witness further testified, 'I was traveling north on River Road near where it intersects with King Street; King Street comes in on River Road at about 3500 North. River Road was a four lane highway with double yellow lines running down the center. Two lanes go north, and the other two south. River Road has some windings, and turnings. Just prior to 3500 North there is a bend, or a curve, just before that intersection in River Road. * * *
* * *
* * *
* * *'
On cross-examination Pellico said, This witness further testified that he did not have his car radio on at the time of the accident.
The next witness to testify was Stephanie Pellico, the other original plaintiff in the lawsuit. Concerning the accident, she testified,
The following witness was one John Blaski. This witness stated that he was an amateur photographer. He took pictures of the scene of the accident shortly after it occurred. Blaski did not see the accident happen, but the photographs were taken before the automobiles involved were moved and even before the injured were taken away. This witness stated that he saw debris in the area of the Mercury, the Pellicos' car. 'The debris was sheet metal and glass. I cannot be certain whether there was any other debris. As to its location with reference to the lanes of traffic on River Road, it was pretty well all over. There was no particular spot where I noticed it. * * *
After examining the pictures to refresh his recollection, the witness said he did not think the water extended into the northbound lanes, but he could not say positively. The witness identified part of a broken barricade in the picture.
James Erickson, one of the counter-plaintiffs and passenger in the automobile driven by Earl Jackson, was called as an adverse witness pursuant to section 60 of the Civil Practice Act, Ill.Rev.Stat., 1963, Chap. 110, sec. 60. He said that he knew Earl Jackson and had seen him the day before the accident at about 8:00 p.m. in the Ragdoll Tavern. Erickson continued, 'When I entered the lounge, he was sitting at the bar. I wouldn't know if he had a drink in front of him. * * * I sat down about three or four stools away from Jackson. A few other fellows were sitting in between us. There was a bartender behind the bar. * * * I can't recall who the bartender was. The bartender served all of us. I don't know whether he served Jackson or what. * * * As to whether he served Jackson, I wasn't drinking with Jackson. I don't recall whether he was drinking at 8:00. * * * I sat four bar stools away from Jackson. * * * I can't recall whether Jackson was in the Ragdoll from 8:00 o'clock to 12:00 o'clock. * * * He might have went out between then. I saw him at the Ragdoll off and on between those times. I saw him sitting at the bar, standing up, and dancing. * * * I saw him dancing with Mary Golich during that time. I do not recall how many times I saw him dancing with her. I don't recall seeing him leave the Ragdoll during that time. * * *
This witness testified that he had consumed approximately 4 or 5 beers during the evening in question. He said that he did not notice anything unusual about Jackson that evening.
According to this witness, Jackson, Mary Lou Golich and he drove...
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