Plank v. Holman

• Decision Date: 29 September 1970
• Docket Number: Nos. 42272,42275,s. 42272
• Citation: 264 N.E.2d 12,46 Ill.2d 465
• Parties: Maxine M. PLANK, Exrx., Appellee, v. Thomas Earl HOLMAN, Appellant. Appeal of Myrtie R. WALGREEN et al.
• Court: Illinois Supreme Court

Page 12

264 N.E.2d 12

46 Ill.2d 465

Maxine M. PLANK, Exrx., Appellee, v. Thomas Earl HOLMAN, Appellant.

Appeal of Myrtie R. WALGREEN et al.

Nos. 42272, 42275.

Supreme Court of Illinois.

Sept. 29, 1970.

Rehearing Denied Dec. 3, 1970.

Gates W. Clancy, Geneva (James S. Mills, Geneva, of counsel) for Thomas Earl Holman.

Tyler & Peskind, and George R. Matyas, Aurora (Lloyd J. Tyler, and George R. Matyas, Aurora, of counsel) for Myrtle R. Walgreen and others.

O'Brien, Burnell, Puckett & Barnett, Aurora (Wilson D. Burnell, Donald L. Puckett, Richard J. Larson and Peter K. Wilson, Jr., Aurora, of counsel) for appellee.

KLUCZYNSKI, Justice.

Maxine Plank, executrix of the estate of Laurence Plank, sued Thomas Holman, Myrtle Walgreen and Elsie Rayfield, administratrix of the estate of Ralph Rayfield, for the wrongful death of her husband. The jury returned a verdict for the plaintiff on which judgment was entered. The Appellate Court for the Second District affirmed (108 Ill.App.2d 216, 246 N.E.2d 694) and we granted leave to appeal.

Basically, defendants contend: (1) that the trial court erred in permitting evidence of decedent Plank's careful habits as there were competent eyewitnesses to the accident; (2) that the trial court erred in admitting the testimony of the reconstruction expert and in failing to strike his testimony on the ground that there were eyewitnesses to the accident, thus barring reconstruction testimony, and on further grounds that there was inadequate foundation for such testimony; and (3) that the trial court erred in excluding the occurrence testimony of the defendants' witnesses.

The accident in question occurred while Laurence Plank was driving his 1963 Buick in a westerly direction along Route U.S. 30 about one mile west of the intersection of U.S. 30 and Illinois Route 47 in Kane County. At the site of the accident, there was a yellow no-passing stripe for the westbound traffic, and the highway from east to west was on a slight upward grade, toward the crest of a hill. The plaintiff, Maxine Plank, was driving another car, approximately eight to nine car-lengths behind her husband's car. There were no cars between them. The defendants' cars were operated in an easterly direction, one a Mustang driven by Thomas Holman, and the other a Lincoln driven by Ralph Rayfield, the chauffeur of Myrtle Walgreen. Mrs. Holman was a passenger in her husband's car and defendants Myrtle Walgreen and Elsie Rayfield were riding in the Lincoln.

Defendants Holman, Walgreen and Rayfield, and also Mrs. Holman, were offered as witnesses, but plaintiff objected and they were not permitted to testify because of the so-called Dead Man's Act (Ill.Rev.Stat.1967, ch. 51, par. 2). The proferred testimony of the defendants indicated that the Mustang at no time passed the Lincoln, and that the Buick was passing in the eastbound lane at the time of the accident.

The deputy sheriff who investigated the accident was called by the plaintiff and testified that when he arrived at the scene the decedent's Buick was facing in a westerly direction, completely in the westbound lane with its right rear wheel 'perhaps' on the shoulder of the westbound lane; that the Lincoln was swung around facing in a northwesterly direction about ten to fifteen feet east of the Buick, the front half being in the westbound lane of traffic and the rear half being in the eastbound lane of traffic; and that the Mustang was about twenty feet east of the Lincoln partly on the shoulder on the eastbound side of the highway.

The plaintiff next called George Willgeroth, who arrived at the scene shortly after the accident. He did not observe any skid marks at that particular time, but his family remarked about them. The next day, he returned to the scene and observed the skid marks; the heaviest and most obvious ones were in the eastbound lanes. He testified that they seemed to swerve into the west lane; and that some lesser skid marks were in the westbound lane. A witness was called by the plaintiff, who testified to the careful driving habits of the decedent, Laurence M. Plank.

William Billings, an expert in reconstructing accidents, was then called by the plaintiff. He testified as to his training, background and experience in the field; that he had reconstructed the accident in question and in doing so, he employed photographs of the cars involved, photographs of the highway at the scene of the accident, and photographs taken by him at the scene at a subsequent date. He testified as to his personal observation of the Buick and to the measurements and other observations made by him at the scene of the accident at a subsequent date. He testified in detail with reference to the various steps involved in his reconstruction of the accident. It was his opinion that the eastbound Mustang was overtaking and passing the eastbound Lincoln; that the driver of the Mustang observed the closeness of the westbound Buick and turned to the right and braked to get back into the eastbound lane in front of the Lincoln; that the Lincoln, in order to avoid a rearend collision, turned to the left and applied his brakes; that the front of the Lincoln collided with the rear of the Mustang; and that the Lincoln then proceeded crossways into the westbound lane, where it was struck at its right front fender by the front of the Buick.

Maxine Plank testified that her husband had been industrious, his habits of sobriety and thrift were good, his health had been good, and he contributed money, goods and services to her.

The defendants called ...