Yelinich v. Capalongo

• Decision Date: 10 December 1962
• Docket Number: Gen. No. 48591
• Citation: 38 Ill.App.2d 199,186 N.E.2d 777
• Parties: Edith YELINICH and Martin Yelinich, Plaintiffs-Appellees, v. John CAPALONGO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 777

186 N.E.2d 777

38 Ill.App.2d 199

Edith YELINICH and Martin Yelinich, Plaintiffs-Appellees, v. John CAPALONGO, Defendant-Appellant.

Gen. No. 48591.

Appellate Court of Illinois, First District, First Division.

Dec. 10, 1962.

Richard C. Bleloch, Robert A. Wiacek, Chicago, for appellant.

George A. Beck, Helmut A. Fydrych, Chicago, for appellees.

BURMAN, Presiding Justice.

Plaintiffs brought this action in the Municipal Court of Chicago to recover damages for personal injuries and property damage sustained by them following an automobile accident. The complaint charged defendant with both negligence and wilful and wanton misconduct. The jury returned a verdict for $500.00 in favor of plaintiff, Edith Yelinich, and for $2,000.00 in favor of plaintiff, Martin Yelinich. Judgment was entered on the verdicts and defendant appeals.

The accident occurred in the early afternoon of August 28, 1955, at the intersection of 26th Street and Hamlin Avenue in Chicago. Edith Yelinich was a passenger in an automobile driven by her husband in a westerly direction on 26th Street, a four lane thoroughfare. Defendant was travelling in a southerly direction on Hamlin Avenue, which has two lanes of traffic. It was a clear, sunny day, the streets were dry, and the intersection where the accident occurred was controlled by red, amber, and green traffic lights. Martin Yelinich testified that he was driving in the lane nearest the curb at a speed of 18 to 20 miles per hour and when he was 40 to 50 feet from the intersection he noticed the traffic light turn green. It remained green when he entered the intersection and as he approached the middle of the intersection, his car was struck by defendant's automobile. He did not see defendant until immediately before the impact when his wife screamed. After the impact, the Yelinich car made a 'U turn' and came to a stop after striking another car parked at the northwest corner of 26th Street. The testimony of Edith Yelinich was substantially the same as that of her husband. She first noticed the green light when they were 25 to 30 feet from the intersection. She stated she was looking straight ahead; the light remained green as they entered the intersection, and 'before I know, we got crashed with his car, * * * demolishing the whole center of our car.'

Defendant, called as a witness by plaintiffs, under Section 60 of the Civil Practice Act, Ill.Rev.Stat.1961, c. 110, § 60, testified that he was the owner of a 1949 Kaiser which he had owned for about two years, and on the day in question he was travelling in a southerly direction on Hamlin Avenue on his way to work. He stated he was 10 to 25 feet from 26th Street when he noticed the light was green. He was then going 18 miles per hour. The light was still green when he approached the intersection and he reduced his speed to 10 miles per hour. He said he first saw plaintiffs when he was on top of them and he slammed on his brakes, but his car struck the center of plaintiffs' automobile. He estimated plaintiffs' speed to be 40 miles per hour. His estimate was based on the sound of the impact when the cars collided. Defendant's testimony at trial was at variance with the testimony he had given in a deposition taken March 27, 1956. At trial he testified he drove this way to work every day while his testimony in the deposition was that he had not been on this street before. Although he stated at trial that he was going 10 to 18 miles per hour, his deposition stated his speed to be 25 miles per hour. Further conflicts appeared in defendant's testimony when he testified in his own behalf. While his original testimony was that he had not seen plaintiffs' automobile until the impact, his later testimony was that he first saw plaintiffs when they were 30 feet from the intersection and he was 15 feet from the corner. The deposition placed plaintiffs' vehicle 25 feet from the intersection when he first saw the car. In addition, plaintiffs' counsel brought out in cross examination that defendant had testified in the deposition that he had stopped for a red light at 26th Street. Finally, defendant's testimony conflicted over whether or not he wore glasses at the time of the accident. The deposition testimony was that he had had glasses on at the time of the accident and that a lens was broken in the accident. At trial he denied he needed glasses at the time of the accident; his testimony was that he did not begin to wear glasses until after the accident.

Although defendant denied making some of the statements in the deposition, the court reporter who recorded the deposition testified that the questions and answers appearing in the deposition were true and correct. The trial judge commented in chambers that the defendant was definitely lying when he told defendant's counsel he was seriously considering holding defendant in contempt of court for possible perjury. Defendant's counsel attempted to justify the inconsistencies in defendant's testimony by insisting that defendant had suffered a hearing injury in the accident and did not hear or understand many of the questions. The trial judge replied that the defendant knew what the questions were because he kept repeating the questions before he gave his answers.

Elmer Malmborg, a resident of the neighborhood where the accident occurred, testified for the defense. He stated he was attempting to walk across 26th Street at Hamlin Avenue when he saw plaintiffs' car approaching the intersection. He estimated their speed to be 35 miled per hour. When he got to the center of 26th Street, he noticed that plaintiffs did not appear to be slowing down even though, according to his testimony, they had a red light. He then stated he backed away from the middle of the street and watched plaintiffs' car go through the red light and collide with defendant's automobile. On cross examination he testified he gave his name to the officer who investigated the accident, but was not asked any questions. He further stated he had not given his name to anyone else at the accident. When asked how he was contacted to testify, he stated that an insurance company had contacted him about three months after the accident.

The police officers who investigated the accident were then called by plaintiffs and they testified that they had not taken the named of any witnesses to the accident. They further stated that the normal accident investigation procedure is to take statements from witnesses. Both police officers saw Malmborg at trial, but even though he had an artificial (wooden) leg and walked with a cane, neither officer could recall ever seeing Malmborg before the trial.

The defendant contends he was entitled to a directed verdict at the close of plaintiffs' evidence. On this motion we may properly consider the single question, whether there is in the record any evidence which, standing alone and taken with all intendments most favorable to plaintiffs, tends to prove the material elements of their case. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847. It is clear from the evidence that the jury was asked to determine the issue of whether or not the defendant drove into the intersection against a red light, thereby proximately causing the injuries and damages sustained by plaintiffs. The testimony of both plaintiffs was that they had a preferential right of way by reason of the green light. If this testimony were accepted as true by the jury then defendant did not have the right of way. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293. Defendant's testimony, in addition to the internal inconsistencies, conflicted with that of plaintiffs'. It is the sole function of the jury, as a fact finding body, to determine where the truth lies in conflicting testimony. Both the jury and trial judge saw and heard the witnesses and by the jury's verdict and the ruling of the trial judge on post trial motion, we can only conclude that the testimony of the plaintiffs' was the only evidence worthy of belief. If so, the plaintiffs had the right to proceed through the intersection and we cannot say the motion for a...