author: PRESIDING JUSTICE MEJDA

text:
    D. M. FOLEY COMPANY, INC., Plaintiff-Appellant, v. NORTH WEST FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (5th Division)
    No. 83—53
    Opinion filed March 2, 1984.

      Robert G. Peterson & Associates, of Chicago (Robert G. Peterson and Michael R. Alberts, of counsel), for appellant.
    Gomberg & Sharfman, Ltd., of Chicago (Lawrence A. Gold, David L. Gomberg, and Robert J. Sharfman, of counsel), for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff-intervenor, D. M. Foley Company, Inc. (plaintiff), appeals from an order of the circuit court which granted defendant North West Federal Savings and Loan Association’s motion for summary judgment. Plaintiff contends that the trial court erred in determining that it failed to file its claim for a mechanic’s lien within four months of completing the work under a landscaping contract. Plaintiff also asserts that even if it failed to file its claim for lien within four months of completing the work under the contract, it nonetheless has valid lien rights against defendant because defendant had actual or constructive notice of the claim for lien before acquiring an interest in the property. For the reasons which follow, we affirm.

The various documents filed in the trial court indicate that defendant is mortgagee of the subject property pursuant to three mortgages recorded on March 9, 1976, November 1, 1978, and August 1, 1979, respectively. On September 9, 1980, plaintiff entered in to a written contract with Ballantrae Development, Inc. (Ballantrae), by which it agreed to provide landscaping services, including labor and materials, for the mortgaged land. The contract provided that plaintiff “guarantees all materials and workmanship specified for a period of 12 Months unless neglected by the Purchaser.” Incorporated into the contract was a “Scope of Work” list. Several photocopies of this list appear in the record, but these are largely illegible. Plaintiff admitted, however, in answering defendant’s interrogatories that all of the items on the scope of work list were delivered and completed on or about December 14, 1980. The complaint alleged that the contract was completed on May 29, 1981, within four months of the filing of the claim for lien on July 2, 1981. It was also alleged that on December 14, 1980, plaintiff made written demand on Ballantrae for payment in full for labor and materials delivered to the real estate. On October 19, 1982, defendant filed a motion for summary judgment, based on defendant’s contention that the contract was fiilly performed more than four months before the filing of the lien claim. The affidavit of Joan Slezak accompanied the motion and stated that she had reviewed documents produced by plaintiff and that none of them supported the contention that plaintiff had performed work under the contract within four months of the filing of the claim for lien. Plaintiff’s president, D. M. Foley, filed an affidavit in opposition to defendant’s motion which stated that plaintiff, “under the terms of the contract *** continued to perform maintenance-landscaping services at Ballantrae pursuant to the terms of the contract until May 29, 1981.” A letter dated June 3, 1981, signed by D. M. Foley as plaintiff’s president, and addressed to Ballantrae, was attached to the affidavit. The letter stated .that plaintiff was terminating “our guarantee” based on Ballantrae’s failure to pay invoices and to maintain the materials installed by plaintiff.

On December 15, 1982, the trial court granted defendant’s motion for summary judgment and dismissed the complaint. Plaintiff appeals from that order.

Opinion

Plaintiff’s first contention on appeal is that the trial court erred in determining that plaintiff had failed to file its claim for lien within four months of completing work under the contract. Section 7 of the Mechanics’ Liens Act provides that:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within 4 months after completion, or if extra or additional work is done or material is delivered therefor within 4 months after the completion of such extra or additional work or the final delivery of such extra or additional material, he or she shall either bring an action to enforce his or her lien therefor or shall file in the office of the recorder of deeds of the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for lien ***.” (Ill. Rev. Stat. 1981, ch. 82, par. 7.)

Plaintiff’s argument assumes that the four-month period provided by the statute begins upon completion of the contract, and further that the maintenance work allegedly performed under the contract after December 14, 1980, was sufficient to bring all of the work performed under the contract within the four-month period. “However, ‘completion’ as used in section 7 does not refer to completion of the contract. It means completion of the work for which a contractor seeks to enforce his lien. (W.G. Wood Co. v. Nyeswander (1914), 187 Ill. App. 354.)” (Dougherty-Janssen Co. v. Danage Enterprises, Inc. (1980), 80 Ill. App. 3d 1112, 1116, 400 N.E.2d 1023.) In the instant case there is no dispute that all of the items on the scope of work list in the contract were delivered and installed and payment demanded on or about December 14, 1980. This work was thus “completed” on that date within the meaning of the statute. Accordingly, the claim for lien or suit to enforce the lien should have been brought within four months of December 14, 1980, in order to have been timely. Because there is no genuine dispute that the claim for lien was not filed until July 2, 1981, the lien for the work performed and materials furnished on or before December 14, 1980, was not preserved. The trial court therefore properly granted summary judgment as to this issue. See generally Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c); Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497.

Plaintiff’s next argument, liberally construed, is that it is entitled to a lien for the work allegedly performed after December 14, 1980, which consisted of “[mjaintenance landscaping services,” according to plaintiff’s answer to defendant’s interrogatory. Defendant has not questioned the timeliness of the filing of the claim for lien with regard to these services. Nonetheless, an examination of the basis for the claim of lien is appropriate because we may affirm the trial court when justified in law for any reason. (Ozment v. Lance (1982), 107 Ill. App. 3d 348, 350, 437 N.E.2d 930.) In our view, whether plaintiff may be entitled to a lien for the value of this work depends on whether the “maintenance” services which he assertedly performed qualify as “landscape work” -within the meaning of section 1 of the Mechanics’ Liens Act. This statute provides in pertinent part that “[a]ny person who shall by any contract *** with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract, to improve the lot or tract of land, furnish material, fixtures, apparatus or machinery, forms or form work ***; or fill, sod, or excavate such lot or tract of land, or do landscape work thereon or therefor; *** has a lien upon the whole of such lot or tract of land ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 82, par. 1.

The phrase “landscape work” does not appear to be susceptible of precise definition and construction is necessary to determine whether “maintenance landscaping services” are within the statute. In construing a statute, the primary inquiry is to ascertain the legislature’s intention not only from the language which it has used, but also from the reason and necessity for the act, the evils sought to be remedied, and the objects and purposes sought to be obtained. Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489, 494, 140 N.E.2d 687.

Generally, the basis for a mechanic’s lien is the performance of work or the furnishing of materials in the construction upon or improvement of land and which constitutes an enhancement of the value of the land. (See generally Robinette v. Servite Fathers (1977), 49 Ill. App. 3d 585, 587, 364 N.E.2d 679; see also Verplank Concrete & Supply, Inc. v. Marsh (1976), 40 Ill. App. 3d 742, 744, 353 N.E.2d 27.) In Robinette, the court construed the 1973 version of section 1 to exclude the removal of a house from land on the ground that such removal did not improve the land. Although this specific holding was legislatively overruled as of July 1, 1980, by Public Act 81 — 1185 (see Ill. Ann. Stat., ch. 82, par. 1 (Smith-Hurd Supp. 1982)), the legislature was merely substituting its conclusion that the removal of such a structure enhanced the value of the subject property, rather than attempting to effect a change in analysis. Thus, the focus of inquiry remains whether the work performed has enhanced the value of the land to be charged with the lien. (See Verplank Concrete & Supply, Inc. v. Marsh (1976), 40 Ill. App. 3d 742, 744, 353 N.E.2d 27; Robb v. Lindquist (1974), 23 Ill. App. 3d 186, 189, 318 N.E.2d 301; see also Bull v. Mitchell (1983), 114 Ill. App. 3d 177, 184, 448 N.E.2d 1016 (construing section 37 of the Mechanics’ Liens Act, relating to liens on watercraft).) Although it is not necessary that the materials furnished enhance the value of the premises where the action is between the lienor and the owner (Ripperden v. Henry Absher Chevrolet, Inc. (1971), 1 Ill. App. 3d 712, 714, 274 N.E.2d 113), this exception is inapplicable by its terms to the instant controversy between the putative lienor and the defendant as the then mortgagee. The apparent rationale for this rule is that a lien which is not based on enhancement of the property’s worth creates a potential for fraud against the mortgagee’s interests (compare Edward Hines Lumber Co. v. Dell Corp. (1977), 49 Ill. App. 3d 873, 882, 364 N.E.2d 368 (amount of lien not limited by original contract price where such price was unreasonably low and therefore in violation of rights and interests of subcontractors)). This same potential for fraud exists where a lien is claimed for landscaping services which have not added anything tangible to the property. Thus, although not specifically stated in the statute, we believe that the proper construction of the phrase “landscape work” requires a showing of enhancement of the subject property.

The initial planting of trees or shrubbery on property constitutes an obvious enhancement of the land. In the instant case, however, it is undisputed that no materials were installed on the property after December 14, 1980. The question before us thus becomes whether the “maintenance” landscaping performed in the instant case qualifies as an enhancement which might support a lien. Although the courts of this State have not had occasion to address this question, the California Court of Appeals has held that “maintenance” landscaping can support a mechanic’s lien in some circumstances. (Howard A. Deason & Co. v. Costa Tierra Ltd. (1969), 2 Cal. App. 3d 742, 753, 83 Cal. Rptr. 105, 113.) That court distinguished between the care necessary to insure the proper settlement in the ground of planted materials (which would constitute an improvement for which a lien could be had) and mere mowing and watering, which would be insufficient to support a lien. (2 Cal. App. 3d 742, 753, 83 Cal. Rptr. 105, 113; cf. P.H. Broughton & Sons, Inc. v. Muller & Allen Realty Co. (1976), 40 Ill. App. 3d 776, 353 N.E.2d 30 (correction or maintenance of work already done does not extend time to file claim for lien).) We think this distinction accords with the intent of our legislature in enacting our own statute as indicated by the rationale requiring enhancement, and we will so construe the statute.

This does not resolve the precise question before us, however, which is whether the trial court properly granted summary judgment to defendant on this issue. Plaintiff’s written response to the motion for summary judgment described the contract with Ballantrae as involving:

“planting trees, grass and other foliage at the Ballantrae project. In addition, once the trees and foliage were fully placed at the project, Foley had a continuing obligation to provide maintenance services at the project for a period of time. In this particular case, Foley completed the original placement of the trees and shrubs on or before December II, 1980 and the entire balance under the contract became due at this time. Foley then continued to provide maintenance services at the Ballantrae project until May 29, 1981 pursuant to the provisions of the contract.” (Emphasis added.)

Thus, the materials had been “fully placed” at the project by December 14, 1980. There is nothing in the record which suggests that Foley enhanced the property in any way after this date. This conclusion is bolstered by the letter from D. M. Foley to Ballantrae stating that because of the failure to maintain the materials implanted by plaintiff, the latter was terminating its “guarantee.” This indicates that the “maintenance” services were not intended to aid in the initial settlement of materials in the ground, but were designed instead as subsequent measures necessary to maintain the vitality of the living materials. Mere replacement of once-viable material does not enhance the property, as is required by the statute. We conclude, therefore, that there was no genuine issue of material fact before the trial court sufficient to preclude entry of summary judgment.

Plaintiff next contends that it has valid lien rights against defendant because defendant had notice of plaintiff’s claim prior to defendant’s acquisition of its ownership interest in the property. Plaintiff cites this court’s decision in Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill. App. 3d 728, 420 N.E.2d 672, for the proposition that the four-month limit imposed by section 7 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 7) is inapplicable where a subsequent purchaser has notice of a pending suit to forclose a lien and whose interests, therefore, are not prejudiced by the failure to comply with the filing deadline. Mutsehler, however, does not so hold. In that case, the trial court had granted a motion to dismiss one set of defendants on the ground that they were subsequent purchasers -within the meaning of section 7 and that the putative lienor was therefore required to file its claim for lien within the four-month period, which it had failed to do. The appellate court held that the trial court had insufficient information before it to determine, on a motion to dismiss, whether those defendants qualified as subsequent purchasers. The court concluded that, for purposes of the motion to dismiss, the defendants had failed to show that they met the requirements of section 7 and, accordingly, they could not invoke the four-month filing requirement as the basis for the motion to dismiss. (See Waldbillig Woodworking, Inc. v. King Arthur’s North, Ltd. (1982), 104 Ill. App. 3d 417, 419-20, 432 N.E.2d 1048.) Moreover, as the court in Waldbillig indicated, a lien filed after the four-month period cannot be valid even against those who purchase an interest in the property after the filing of the lien (and who therefore have notice of the lien) because the four-month period is “not merely a statute of limitations *** [but] a condition of liability itself and not just a limitation on the remedy. [Citation.] It follows that the potential liability of subsequent purchasers perished inchoate four months after plaintiffs completed the work.” (104 Ill. App. 3d 417, 420, 432 N.E.2d 1048.) Accordingly, we must reject plaintiff’s contention in the instant case.

The order of the trial court granting summary judgment in favor of defendant is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

      Plaintiff’s brief asserts that “[subsequently, when Ballantrae defaulted on construction loans and after the plaintiff filed its lien, the defendant succeeded to an ownership interest in the property in question.” However, as defendant points out, the record is devoid of evidence capable of supporting this claim.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    ELIJAH TURNER, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—3055
    Opinion filed March 9, 1984.

      O’Halloran, Lively & Walker, of Northbrook (James E. O’Halloran, Jr., and Stephen J. O’Neil, of counsel), for appellants.
    William J. Harte, Ltd., of Kroll & Rubin, both of Chicago (William J. Harte, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff brought suit to recover damages for personal injuries suffered as a result of the alleged negligence of defendant Bolton, a bus driver employed by defendant Chicago Transit Authority (CTA), in the operation of a CTA bus. Following a trial by jury, judgment was entered against defendants with total damages assessed at $212,500, subsequently reduced to recoverable damages of $132,812.50 as a result of a finding that plaintiff was 37.5% contributorily negligent. On appeal, defendants allege that: (1) the jury’s verdict was against the manifest weight of the evidence; (2) the trial court erred when it admitted evidence of a prior consistent statement to rehabilitate the plaintiff; and (3) the jury’s award for lost income and lost earning capacity was erroneously premised on speculation and inadmissible evidence. For the reasons that follow, we affirm in part and reverse in part.

On May 13, 1977, approximately 5:30 a.m., a CTA bus driven by defendant Bolton collided with plaintiff within a few feet of the intersection of Lotus and Chicago Avenue in Chicago. The impact of the collision threw plaintiff to the ground between the curb and the bus, and the right rear wheel of the CTA bus ran over his left arm.

In his testimony as an adverse witness pursuant to section 2— 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102), defendant Bolton stated that at the time of the collision, he was driving the bus at a speed between two to three miles per hour, traveling in an easterly direction in the right-hand parking lane of Chicago Avenue, approximately four feet from the curb. When he heard the sound of an impact on the right side of the bus to the rear of the rear door, he immediately stopped the bus to investigate the situation. Defendant admitted that he had seen plaintiff prior to the collision and could have stopped, but denied that plaintiff had been trying to flag the bus.

When questioned by defense counsel, defendant stated that when he first observed plaintiff, plaintiff was walking down the middle of the sidewalk in an “unusual manner, staggering up upon his toes,” heading west on Chicago Avenue. Upon observing plaintiff, defendant put his foot on the brake, tooted his horn, and moved away from the curb as much as possible. A passing truck prohibited him from actually pulling into the left lane. Plaintiff did not respond to the horn and defendant continued to drive past him, momentarily glancing in his right-hand rear view mirror. No part of the front of the bus ever came into contact with plaintiff, the wheels of the bus never went onto the curb, and the bus driver never turned the bus toward the right-hand curb or made any other sudden or jerky turns. The speed limit on Chicago Avenue is 30 miles per hour. There was no bus stop at the comer of Lotus and Chicago Avenue.

Next, plaintiff testified that on the morning of May 13, 1977, he left his mother’s house and was walking west on Chicago Avenue, looking for a bus to take him east. He spotted defendant’s bus approximately IV2 blocks away and started to jog to the nearest comer at Lotus and Chicago Avenue, unaware that this comer was not a designated bus stop. The bus was traveling between 5 to 15 miles per hour and maintained a distance of about two feet from the curb. Plaintiff stood on the curb and waved his hand in an attempt to flag down the bus. He did not hear the bus driver sound his hom. Plaintiff continued to wave at the bus as it approached the corner, but the bus did not slow down or stop. Although plaintiff could see the bus driver, the driver did not indicate that he had seen plaintiff. When plaintiff came in contact with the bus between the front and rear doors, the impact threw him onto the pavement and the rear wheel of the bus ran over his arm.

On the morning of the accident, plaintiff, unemployed, was on his way to find employment. At the time, he had no offers of employment. Prior to being laid off from his most recent job, plaintiff had worked as a die setter for which he had earned approximately $17,000 per year. As a result of his injury, plaintiff’s left arm is permanently disabled, rendering him physically unable to do his former type of work. Instead, plaintiff is limited to performing less physically-demanding work for which he is paid a lower salary. Plaintiff estimated his yearly earnings in 1978 to have been approximately $12,000. At the time of the trial in 1982, plaintiff was again unemployed. Since the accident, he has had difficulty keeping a job because he cannot do any heavy lifting.

During cross-examination, when plaintiff stated that he might have had a couple of beers about 12:30 a.m. on the morning of the accident, defense counsel impeached his testimony with a prior inconsistent statement taken from plaintiff’s deposition wherein he had stated that he had been working on his friend’s car the night before the accident until about 1 a.m., after which they had a few beers around 2:30 or 3 a.m. Plaintiff admitted that he had not looked around for a designated bus stop on the morning of the accident. Rather, he intended to flag down a bus when he saw one. Plaintiff never stepped off the curb, and had no idea how far his arm was extended into the street while he was waving. No portion of the front of the bus hit his extended arm. Plaintiff further indicated that he was unsure as to whether his waving arm hit the bus or the bus hit his arm. However, he was certain that the wheels of the bus never went over or up onto the curb, and that the bus never jerked left or right, but maintained a two-foot distance from the curb. Plaintiff denied telling anyone that the accident occurred when he spun off the curb, stating that he did not fall off the curb until after the bus hit him. At this point, defense counsel again impeached plaintiff from a deposition statement wherein plaintiff explained that he “got in a spin hitting on the side of [the bus].” Plaintiff also denied telling his treating doctor that he had slipped and fallen under a bus.

Thereafter, during redirect, when plaintiff’s counsel attempted to rehabilitate plaintiff from the same deposition used to impeach his testimony regarding the time at which he had had a few beers on the morning of the accident, defense counsel asked for a sidebar during which he argued that there is no authority that allows a party to be rehabilitated by a past consistent statement. Relying on Supreme Court Rule 212(c) (87 Ill. 2d R. 212(c)) (Rule 212(c)), the court allowed plaintiff's counsel to rehabilitate by reading an omitted part of the deposition that was used to impeach. As a result, the following excerpt from the deposition was read in front of the jury:

“Q. When did you have beers, at what time?
A. I guess it must have been about 12:30,1 guess.”

Dr. William Newman, orthopedic surgeon at St. Anne’s Hospital where plaintiff was treated, testified that he first examined plaintiff on May 13, 1977, at which time plaintiff told him that while trying to catch a bus, 1 - had slipped and fallen under the bus which then ran over his arm. Although Newman did not notice any particular symptoms of plaintiff’s intoxication, another doctor had noted on plaintiff’s medical record that plaintiff had had a hangover at the time.

After stipulating that pursuant to a recognized mortality table, plaintiff, age 41, would live another 29.2 years, plaintiff rested his case. Thereafter, the trial court denied defendant’s motion for a directed verdict, stating, inter alia, that the evidence presented a factual situation for the jury. Further, “[t]he bus *** came within two feet of the curb, which *** [cjould be considered negligence and which raises a question whether the driver was keeping a proper lookout.”

Next, Glen Ward testified on behalf of defendants that he had observed the accident while sitting in the second seat directly behind the rear door of the bus. From this vantage point, he saw plaintiff waving his arm and running toward the curb “like he had just woken up or like had been drinking something.” In Ward’s opinion, plaintiff could have been under the influence of alcohol at the time. Plaintiff then slipped just as the bus was passing him, coming into contact with the bus right behind the rear door. Ward did not hear any noise from the impact, but noticed that the bus stopped immediately. Ward stated that the bus did not run into plaintiff. Rather, plaintiff ran into the bus.

On cross-examination, Ward admitted that he did not actually see plaintiff’s feet slip off the curb. He also did not hear a horn. At the time of the accident, the bus was between three to six feet from the curb. Ward could see the curb from where he was sitting.

Dr. Jolanda Peckus, emergency medicine specialist at St. Anne’s Hospital, then testified that she treated plaintiff in the emergency room on the morning of May 13, 1977. The treatment included a blood alcohol test which indicated that plaintiff had an alcohol level of 280 milligrams. The normal level is 0 and a level around 100 is considered significant. Further, plaintiff told Peckus that he had consumed two to three six-packs of beer and had fallen toward a bus, injuring his arm.

Plaintiff then took the stand again and testified that on the evening before the accident, he was at home and had gone to bed approximately 1 a.m. At this point, defense counsel impeached plaintiff’s testimony with statements taken from his earlier deposition indicating that he had been working on his friend’s car until approximately 1 a.m. When plaintiff denied drinking any alcoholic beverage between midnight and 5:30 a.m. on May 13, 1977, defense counsel again impeached him with the following deposition statements:

“Q. How about from 12:00 on May 13, 1977 until the time of the accident at 5:30, did you have anything to drink?
A. From 12:00 I didn’t have anything up until about one, I guess it was, when I went home to clean up.
Q. Where were you drinking at is what I’m trying to find out? [Sic.]
A. At his garage.
Q. Were you drinking at his house?
A. Not drinking but a couple of beers.
Q. When did you have the beers? At what time?
A. I guess it must have been about 12:30,1 guess.
Q. 12:30 in the morning?
A. Yes.
Q. And how many beers do you recall?
A. Two, three.”

Plaintiff did not recall giving those answers at the deposition. Defendants then rested their case. Following a conference on jury instructions, defendants’ motion for a directed verdict and plaintiff’s motion for a directed finding of negligence were denied.

During his closing argument, plaintiff’s counsel discussed, inter alia, the areas of “nature, extent, duration, disability, disfigurement and pain and suffering” for the computation of damages. Counsel explained that while these elements were not “easily mathematically computable,” they were “very important elements of damages.” For the nature and extent of plaintiff’s injury, counsel suggested $25,000 in damages. For the element of duration, he suggested $29,000 in damages based upon a suggested formula of $1,000 per year for 29 years (plaintiff’s life expectancy). Total damages requested were $237,885.95. Thereafter, the jury returned with its verdict, finding defendants 62.5% negligent, and plaintiff 37.5% contributorily negligent, with recoverable damages assessed at $132,812.50.

Opinion

Defendants first contend that the jury’s finding of negligence and its allocation of comparative negligence “flies directly in the face of the clear, overwhelming and manifest weight of the evidence,” and that the trial court erred in denying defendants’ motions for a directed verdict, judgment notwithstanding the verdict (judgment n.o.v.), or for a new trial.

The propriety of a directed verdict or judgment n.o.v. must be analyzed by the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, where the supreme court stated: “In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d 494, 510.) Moreover, negligence may be established by either direct or circumstantial evidence from which reasonable inferences may be drawn. (Mort v. Walter (1983), 98 Ill. 2d 391, 396.) With respect to a new trial, where the trial court has denied a motion for a new trial, the reviewing court will not disturb the findings of the jury unless the verdict is against the manifest weight of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 439, 359 N.E.2d 1078.) The jury’s verdict cannot be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony or because the reviewing court would have reached a different conclusion if it had been the trier of fact. Tihay v. Aurora City Lines (1967), 79 Ill. App. 2d 107, 116, 223 N.E.2d 171.

In the present case, plaintiff alleged that defendants breached both a statutory duty of care and common law duty of care by their failure to do one or more of the following: (1) operate and control the bus; (2) stop or slow down when danger to the plaintiff was imminent; (3) keep a proper look-out; and (4) sound the horn to avoid collision with the plaintiff. In making its determination as to these allegations, the court instructed the jury, in part, as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute [citation] which provided that:
‘Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or obviously confused, incapacitated or intoxicated person.’
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.
It is the duty of every driver of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at all times to avoid a collision.”

Upon reviewing the record, we find that testimony elicited at trial could support conclusions by the jury that defendant bus driver had failed to slow or stop the bus, sound his horn, or turn the bus away from the curb when the driver saw plaintiff “staggering” toward the curb, attempting to flag the bus. Further, it is conceivable that the jury found these nonactions to have violated the duties of care set forth by the court. Thus, we cannot say that the evidence, when viewed in the light most favorable to plaintiff, so overwhelmingly favors defendants that no contrary verdict could stand. For the same reasons, neither can we conclude that the jury’s verdict as to negligence was against the manifest weight of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 439, 359 N.E.2d 1078.) Therefore, we affirm the trial court’s denial of a directed verdict, judgment n.o.v. and a new trial on the issue of negligence.

As a final note with respect to the manifest weight question, we acknowledge the numerous case-law references cited by both plaintiff and defendants which present a variety of factual situations involving motor vehicle collisions. While each case has its factual similarities to the present case, each one also has its factual dissimilarities. Thus, aside from applicable rules of law cited therein, we do not find any of the cited cases dispositive of the negligence issue before this court. Therefore, rather than encumber this opinion with a lengthy discussion of the pivotal distinguishing factors, suffice it to say that we found none of the cases persuasive on their facts.

The next issue presented to this court is whether Rule 212(c) authorizes the use on redirect of a prior consistent statement taken from a deposition to rehabilitate a witness who has been impeached on cross-examination by a prior inconsistent statement taken from the same deposition. Rule 212(c) provides:

“If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered in connection with the part read or used.” 87 Ill. 2d R. 212(c).

The purpose of Rule 212(c), as stated in the 1956 Joint Committee Comments, is “to avoid the unfairness and distortion which may result if a party is permitted to read isolated out of context portions of a deposition without permitting the opponent to read or require the other party forthwith to read other relevant portions of the deposition.” Ill. Ann. Stat., ch. 110A, par. 212(c), Historical and Practice Notes, par. (c), at 170 (Smith-Hurd 1968).

Juxtaposed to Rule 212(c) is the well-established common law axiom that “[p]roof of the out of court declarations of a witness, in corroboration of testimony given by him on the trial of the case, is, as a general rule, inadmissible, even after he has been impeached or discredited.” (Schmitt v. Chicago Transit Authority (1962), 34 Ill. App. 2d 67, 72, 179 N.E.2d 838.) As accurately pointed out by defendants, the relationship between Rule 212(c) and the common law rule of evidence was addressed by this court in Schmitt v. Chicago Transit Authority (1962), 34 Ill. App. 2d 67, 179 N.E.2d 838, and found to be compatible. In essence, the Schmitt court interpreted the fairness provision of Rule 212(c) as permitting rehabilitation by prior consistent statements from depositions to explain or clarify testimony in an effort to avoid distortion of the facts by isolated and out-of-context statements. In substance, the Schmitt decision is judicial affirmance of Rule 212(c)’s purpose as stated in the aforementioned Joint Committee Comments. The key words in the Schmitt holding are “explain” and “clarify” because while they broaden the common law rule of evidence, they also limit application of Rule 212(c). In other words, although Rule 212(c) provides a statutory exception to the common law rule of inadmissibility of prior consistent statements from depositions, Rule 212(c)’s fairness provision, as interpreted by the courts, limits the exception to statements that explain or clarify prior impeachment testimony taken from the same document. See also Lanning v. Wiatr (1979), 76 Ill. App. 135, 137, 394 N.E.2d 873, and Redding.v. Schroeder (1964), 54 Ill. App. 2d 306, 313, 203 N.E.2d 616.

In the present case, plaintiff testified during cross-examination that he had been drinking at approximately 12:30 a.m. on the morning of the accident. Defense counsel then impeached him with a deposition statement that indicated he had been drinking as late as 2:30 a.m. that morning. On redirect, over defense counsel’s objection, plaintiff’s counsel rehabilitated plaintiff’s testimony with a statement taken from that same deposition stating that plaintiff had been drink-

ing at 12:30 a.m. or 1 a.m. Relying on 212(c), the trial court allowed the rehabilitation. It is our opinion that because the rehabilitation statement, did not explain or clarify the impeachment statement, but only contradicted it, it was improperly admitted. However, we do not agree that the erroneous admission prejudiced defendants in any way. Defendants argue that they were prejudiced by the rehabilitative testimony in three ways: (1) plaintiff’s credibility was enhanced; (2) defendants were denied the right to present a complete defense; and (3) plaintiff was able to create the impression that alcohol was consumed the night before the accident rather than that morning. We disagree. Plaintiff’s contradictory statements as to the time he had had a drink and his obvious confusion during cross-examination regarding his activities on the morning of the accident in no way operated to enhance his credibility. In fact, it is more likely that these inconsistencies had the opposite effect. Furthermore, defendants were not denied the opportunity to present a clear defense. The bus driver, passenger and both doctors testified as to plaintiff’s intoxicated condition at or near the time of the accident. Moreover, the jury’s finding of 37.5% contributory negligence is further evidence that the rehabilitative testimony did not prejudice defendants. Therefore, although we find that the trial court erred in admitting plaintiff’s prior rehabilitative statement, we conclude that the error was harmless and does not constitute grounds for reversal.

We turn next to defendants’ contention that the jury’s awards for lost income and lost earning capacity were based upon speculation and inadmissible evidence and should be reduced accordingly. In response, plaintiff argues that testimony as to his 18-month incapacitation immediately after the accident is reliable enough for the jury to have arrived at an award for lost income, and testimony as to plaintiff’s limited employment capabilities is reliable enough for the jury to have determined an amount for lost earning capacity. Moreover, plaintiff contends that pursuant to Stephenson v. Air Products & Chemicals, Inc. (1969), 114 Ill. App. 2d 124, 252 N.E.2d 366 and Orlandi v. Caraway (1973), 9 Ill. App. 3d 628, 293 N.E.2d 337, the jury’s assessment of damages must stand unless this court determines that the damage assessment was clearly erroneous. After careful examination of the record, we find that the introduction of certain evidence regarding damages was improper and prejudicial to defendants and, therefore, conclude that the damage assessment was clearly erroneous.

It is indisputable that lost income is a proper element of damages to be considered by the trier of fact. However, recovery must be limited to such loss as is reasonably certain to occur and cannot be based on testimony which is merely speculative, remote or uncertain. (Christou v. Arlington Park — Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 260, 432 N.E.2d 920.) In the present case, it is uncontroverted that plaintiff was unemployed at the time of the accident and had no firm offers for a job in the future. The fact that he intended to look for a job on the day of the accident is indicative of nothing more than his unemployment. Plaintiff argues that “the jury could have concluded that plaintiff would have been successful in his attempt to find other work on the day he was injured.” This may be true. However, such a conclusion would have been based upon conjecture and speculation, which, pursuant to Illinois law, is an improper basis for a determination of lost income. Accordingly, because there was no evidence establishing with reasonable certainty that, but for the accident, plaintiff would have been employed at a similar job during his 18-month period of incapacitation, we conclude that the admission of evidence regarding plaintiff’s salary for a job he did not have at the time of the accident for the computation of lost income was improper and constituted reversible error on the issue of damages.

Although our decision to reverse on the issue of damages and remand for a new trial obviates the need to discuss the remaining damages-related allegations, in the interests of expediting a final resolution of this controversy upon remand, we shall address those issues at this time. With respect to his lost earning capacity, plaintiff requested the difference between his salary as a heavy machine operator (the type of work he performed prior to the accident) and his salary as a light machine operator (the type of work he is limited to performing as a result of the accident). Relying on the fact that plaintiff was unemployed at the time of the accident and at the time of trial, defendants argue that the estimated forecast on lost earning capacity was highly speculative and contrary to the manifest weight of the evidence. In our opinion, these periods of unemployment are irrelevant to the determination of lost earning capacity. Whether or not plaintiff was actually employed at either of those specific times, the fact remains that because of the accident, plaintiff is unable to perform the higher-paying type of work he actually did perform prior to May 13, 1977. The evidence reveals that between the accident and the trial, plaintiff had held approximately six jobs, all of which were basically similar in the type of physical labor required. In our opinion, testimony regarding these jobs provided a sufficient basis for a determination of the type of work plaintiff was able to perform and his testimony as to salary before and after the accident was sufficient to establish a comparative salary range. Thus, we do not find that the award for lost earning capacity was speculative or contrary to the manifest weight of the evidence. Accordingly, we find Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920, distinguishable on the issue of lost earning capacity. In Christou, plaintiff attempted to establish decreased earning capacity based upon a job that he had never held. In our case, as stated, plaintiff had been employed in both types of work used to determine the difference in earning capacity.

Defendants further argue that plaintiffs use of a mathematical formula in his request for damages for disability was contrary to the Illinois supreme court’s ruling in Caley v. Manicke (1962), 24 Ill. 2d 390, 182 N.E.2d 206 and, as such, constituted prejudicial error. The Caley court was confronted with the question whether the scope of proper jury argument permits the use of a mathematical formula from which counsel may argue that an award for pain and suffering should be based upon a specific sum per day, or other fixed unit in time. In holding that use of a formula is improper, the Caley court stated,

“We are of the opinion that an impartial jury which has been properly informed by the evidence and the court’s instructions will, by the exercise of its conscience and sound judgment, be better able to determine reasonable compensation than it would if it were subjected to expressions of counsels’ partisan conscience and judgment on the matter.” 24 Ill. 2d 390, 393-94.

While we concur with defendants’ interpretation of Caley, we find the distinguishing factors of Warp v. Whitmore (1970), 123 Ill. App. 2d 157, 260 N.E.2d 45, dispositive of the issue at bar. In Warp, the court distinguished the situation before it from that in Caley on three grounds: (1) the sums stated by plaintiff’s counsel were presented as suggestions, not mandated formulas; (2) defense counsel did not object at the time the argument was made to the jury; and (3) plaintiff’s counsel did not challenge defense counsel or offer a better scheme for determining damages. (123 Ill. App. 2d 157, 164.) We find the present case distinguishable from Caley for the same reasons and, thus, do not feel that plaintiff’s suggestion of an award for disability based upon $1000 per year for a life expectancy of 29 years constituted prejudicial error.

Finally, relying on the recent supreme court decision in Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152, defendants argue for the first time in their reply brief that the trial court erred in giving instructions to the jury which listed separate damages for “nature, extent and duration” of plaintiff’s injury. In Powers, the court held that a jury should no longer be instructed to consider the nature, extent and duration of a plaintiff’s injury as a separate and compensable element of damages when other elements of damage such as pain and suffering, economic loss through lost earnings, and disability were also to be considered. The court explained that “[a]ny award for elements such as disability, pain and suffering, or disfigurement will of necessity involve and be based upon the jury’s examination of and assessment of the nature, extent and duration of the injury.” 91 Ill. 2d 375, 382.

In response, plaintiff argues that defendant has waived this argument by his failure to object to the instructions at trial. Our decision to reverse the trial court’s judgment on the issue of damages and remand the cause for a new trial obviates the need to address the waiver argument.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as to the issue of liability, reversed as to the issue of damages and the cause is remanded for a new trial on the issue of damages only.

Affirmed in part; reversed and remanded in part.

MEJDA, P.J., and LORENZ, J., concur.


author: JUSTICE BARRY PRESIDING JUSTICE STOUDER, dissenting:

text:
    CATHERINE DOUBET, Plaintiff-Appellee, v. THOMAS K. MORGAN, Defendant-Appellant.
    Third District
    No. 3—83—0095
    Opinion filed March 6, 1984.
    STOUDER, P.J., dissenting.

      Ronald L. Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

On November 24, 1981, the Knox County State’s Attorney filed a paternity action on behalf of the plaintiff, Catherine Doubet, alleging that the defendant, Thomas Morgan, was the father of her child, Emily Catherine Doubet, born January 31, 1981. At the conclusion of the evidence, the jury returned a verdict in favor of the defendant. The plaintiff filed a post-trial motion and, on January 6, 1983, the court entered an order granting the plaintiff a new trial. Thereafter, the defendant filed a petition for leave to appeal pursuant to Supreme Court Rule 306 (Sup. Ct. R. 306, as amend. Aug. 9, 1983, eff. Oct. 1, 1983).

At trial, the plaintiff testified on direct examination that she first met the defendant on April 20, 1980, at the home of a friend. On April 26, 1980, she spent the night with the defendant and had intercourse with him twice on that occasion. According to the plaintiff, she saw the defendant regularly and had intercourse with him regularly from that time until June 20,1980.

The plaintiff further indicated that, after May 3, 1980, she spent most nights at the defendant’s residence and that on May 16, 1980, she moved into the defendant’s residence in Canton, bringing her clothes and personal belongings with her. She continued to pay rent on her house in Maquon, however. She lived with the defendant until June 22,1980, having intercourse with him on a regular basis.

The plaintiff testified that her menstrual period began on April 30, 1980, and lasted until May 2, 1980. She indicated that she had no further menstrual periods until after the birth of her child on January 31, 1981. She learned that she was pregnant on June 19, 1980, and informed the defendant of her condition on June 20, 1980. Although the defendant, according to the plaintiff, was initially pleased about the impending birth, on June 22 he left a note for her at his residence asking that she vacate the premises so that he could “think things out.” The plaintiff moved out, as the defendant had requested. The plaintiff also testified to having had intercourse with the defendant in July and August, 1980. Their relationship ended after that, and the defendant married another woman in November 1980.

On redirect examination, the plaintiff testified that she had not had sexual intercourse with anyone other than the defendant in April, May or June of 1980.

The defendant, testifying as an adverse witness, initially indicated that he had had sexual intercourse with the plaintiff on June 20 and June 29, 1980, at his residence in Canton. Upon further questioning, the defendant admitted having had intercourse with the plaintiff, on a third occasion, at her residence in Maquon.

On direct examination, the defendant testified that he had had back surgery on March 15, 1980, and that he was in a body cast until May 14, 15 or 16, 1980. He denied having intercourse with the plaintiff until after his body cast was removed. The defendant also testified that the plaintiff did not inform him that she was pregnant until October 1980. He further stated that he had never admitted being the father of her child.

On rebuttal, the plaintiff described the body cast worn by the defendant and explained how intercourse was accomplished while the defendant was wearing it.

The evidence is, of course, conflicting. What we are asked to decide is whether the trial court erred in granting the plaintiff a new trial after the jury returned a verdict in favor of the defendant.

We note initially that the granting of a motion for a new trial is within the sound discretion of the trial judge and will not be reversed by a reviewing court except in a case of clear abuse of such discretion. (Di Maso v. Wieboldt Stores, Inc. (1976), 37 Ill. App. 3d 966, 969-70, 347 N.E.2d 466, 470; Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720.) The presumption on review is that the trial court is in the best position to determine accurately whether the verdict of the jury was proper and has therefore correctly determined the proper disposition of the motion for a new trial. King v. City of Chicago (1964), 53 Ill. App. 2d 484, 202 N.E.2d 839; Warren v. Patton (1954), 2 Ill. App. 2d 173, 119 N.E.2d 465.

On a motion for a new trial, the trial court is to weigh the evidence and set aside the verdict and order a new trial if it finds that the verdict is contrary to the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36; Heideman v. Kelsey (1953), 414 Ill. 453, 466, 111 N.E.2d 538, 544.) In the instant case, a review of the record reveals that the evidence overwhelmingly favored the plaintiff. Where the evidence is susceptible to no reasonable inferences sustaining a jury’s verdict, the trial court may set the verdict aside and grant a new trial. The trial court did not abuse its discretion in granting plaintiffs motion for a new trial.

Accordingly, we affirm the order of the circuit court of Knox County and remand this case for further proceedings.

Order granting new trial affirmed.

HEIPLE, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I respectfully disagree with the conclusion of my colleagues approving the action of the trial court. In my view the verdict of the jury in favor of the defendant should have been permitted to stand.

This case presents what might be aptly characterized as a garden variety jury case. It requires only a casual consideration of the evidence to ascertain there were substantial conflicts in the evidence such conflicts engendered by direct contradictions in the testimony of the two principal witnesses, i.e., plaintiff and defendant, together with evidence affecting the credibility of each. Resolution of the conflicts in the evidence is the classic and traditional role of a jury, and it did so in this case. Its resolution of the issues in favor of the defendant should not be disturbed by the trial court. In so doing the trial court has seen fit to disbelieve substantial portions of the defendant’s testimony and the factors tending to diminish the credibility of the plaintiff’s testimony. In Jardinev v. Rubloff (1978), 73 Ill. 2d 31, 43, 382 N.E.2d 232, the court declared “[a] verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable.” There is nothing in the record of this proceeding convincing me that the jury’s findings were unreasonable, arbitrary and not based upon the evidence. (Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 401 N.E.2d 1145.) No claim is made of any trial error, procedural unfairness or other improper conduct which prejudicially affected the fact-finding process culminating in the jury’s verdict.

The Pedrick rule recognizes that if there are factual disputes to be resolved by a jury, not only should they be submitted to the jury but the jury’s resolution should not be disturbed. Of course if issues are such to require resolution by a jury such issues ought to be susceptible of resolution in favor of either party depending upon the jury’s exercise of its function. If the jury may decide the case only in one way or in favor of only one party, then the issues were not properly submittable to a jury, and it is this salutory effect which is accomplished by the Pedrick rule.

Mazowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32, appears on first impression to depart from the Pedrick rule and to some extent may be somewhat lacking in harmony with it, but as applied to its peculiar facts it is understandable. In Mazowek, the jury found in favor of the defendant, but on review the appellate court entered a directed verdict on the issue of liability in favor of the plaintiff and remanded the cause for a new trial on the issue of damages only. It should be noted that, although not discussed in Mazowek, it is usually not possible to separate liability from damages in a tort case, so that direction of a verdict on the issue of liability is usually inappropriate. Yet in Mazowek this is what had occurred as a result of the appellate court decision, so that we have the successful party in the trial court now having to argue at least in part that a new trial generally should have been granted.

Finally, even if the manifest weight of the evidence was an appropriate issue in this case, I conclude, both from the statement of facts and the majority opinion and my comments about the facts earlier in this opinion, that the jury’s verdict was not against the manifest weight of the evidence. I would therefore reverse the trial court’s order granting plaintiff a new trial and would direct that judgment be entered in favor of the defendant on the verdict of the jury.


author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    ANTHONY BROWN, Plaintiff-Appellee, v. G & M DISTRIBUTORS, INC., Defendant-Appellant.
    Third District
    No. 3-83-0244
    Opinion filed March 9, 1984.
    Rehearing denied April 11, 1984.

      BARRY, J., specially concurring.

      Duncan B. Cooper III, of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    Joseph T. McGuire, of Perz and McGuire, of Chicago, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This case arises from a collision between a car driven by an employee of the defendant, G & M Distributors, Inc. (G & M), and a motorcycle driven by the plaintiff, Brown. The collision occurred at the intersection of Fremont and Henderson streets in Galesburg. G & M’s car was partially in the left eastbound lane of Fremont and partially in the left westbound lane of Fremont while attempting to make a left turn onto Henderson in order to go north. Two cars in the left westbound lane of Fremont were unable to proceed because G & M’s car was partially in their lane. Brown was in the right westbound lane of Fremont traveling west. Brown was struck by G & M’s car upon entering the intersection. There was testimony which suggests that Brown was traveling between 20 to 35 miles per hour into the intersection and did not slow down as he entered the intersection. Also, there was testimony that G & M’s car did not have its left-turn signal turned on. A jury found G & M’s driver negligent, but also found Brown 10% contributory negligent. G & M raises six issues on appeal.

In the first issue, G & M asks whether the jury was properly instructed. G & M notes the trial court refused to include in the jury instructions language from three sections of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, pars. 11 — 601, 11 — 701, 11 — 801, respectively). It is reversible error to refuse to give an instruction which is supported by some evidence when the omission deprives the party tendering the refused instruction of a fair and impartial trial. (Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 344; Mooney v. Etheridge (1978), 65 Ill. App. 3d 847, 850.) G & M contends that “the failure to instruct the jury properly with respect to applicable statutory provisions denied the defendant a fair trial in that the jury, if properly instructed, could have concluded that there was either no fault on the part of the defendant or that there was a greater percentage of fault attributable to the plaintiff.”

The instant case does not involve instructions which entirely omit any reference to statutory duties. Rather, here, the lower court used selected passages of three sections of the Illinois Vehicle Code, sections 11 — 601, 11 — 701 and 11 — 804 (Ill. Rev. Stat. 1981, ch. 95½, pars. 11 — 601, 11 — 701, 11 — 804), respectively, proffered by Brown, but refused to use passages of sections 11 — 601, 11 — 701 and 11 — 801 proffered by G & M. The trial court gave plaintiff instruction No. 13, based upon section 11 — 601(a), which provided as follows: “No vehicle may be driven upon any highway in this State at a speed which is greater than reasonable and proper with regard to traffic conditions, the use of the highway, or endangers the safety of any person or property.” (Ill. Rev. Stat. 1981, ch. 95%, par. 11 — 601(a).) G & M objected because the instruction omitted the following language of section 11 — 601: “The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection ***. Speed must be decreased as may be necessary to avoid colliding with any *** vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” (Ill. Rev. Stat. 1981, ch. 95%, par. 11 — 601(a).) G & M’s instruction No. 16 contained the above-quoted language. The omitted passage explicitly creates a duty of all drivers to slow down upon entering an intersection under certain circumstances. The trial court refused to use the statutory language because the court believed no such duty existed. “Where an instruction is peremptory it must inform the jury of every material question of fact in controversy, and *** should be framed *** so as to properly inform the jury of its legal effect.” (Ryan v. Monson (1961), 33 Ill. App. 3d 406, 422.) In the instant case, the court failed to instruct the jury that every driver (i.e., Brown) has a duty to decrease speed when approaching and crossing an intersection as may be necessary to avoid colliding with another vehicle and that the failure to slow down, under the circumstances of this case, is a breach of that duty which may be considered with other facts and circumstances in determining extent of a party’s negligence. Therefore, the plaintiff’s instruction No. 13 was improper.

G & M also objected to plaintiff’s instruction No. 12, based upon section 11 — 701, which provided as follows: “Upon all roadways of sufficient width, a vehicle shall be driven on right half of the roadway ***.” (Ill. Rev. Stat. 1981, ch. 95%, par. ll-701(a).) Brown argues that this was an appropriate instruction because the statute “obligated [the driver of G & M’s] car to keep to the right of the center of the roadway. The jury could have found [the driver] violated that statute and that violation could have been negligence.” G & M points out that subsection (c) of section 11 — 701 explicitly exempts a driver from the above obligation and allows a driver to cross the center line to make a left turn. Consequently, the instruction submitted by the court could have allowed the jury to find that G & M’s driver violated the statute, when in fact, the driver did not violate the law. G & M also argued to the trial court that portions of section 11 — 801 should have been read to the jury. Section 11 — 801 explicitly instructs a driver to occupy the extreme left lane when preparing to turn left. Plaintiff’s instruction No. 12 incorrectly states the law and undoubtedly misled the jury. Therefore, the instruction was also improper. (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 879.) We have reviewed the record and find no other given instructions which could have corrected the omissions and misstatements in plaintiff’s instructions Nos. 12 and 13. Consequently, the errors are reversible.

Before turning to the second issue, this court would like to comment on Brown’s arguments that G & M’s car had no right to be in the intersection because section 11 — 804 states that no turn can be made without a turn signal and that the green light gave Brown “the right of exclusive possession of the intersection.” Therefore, Brown concludes, Brown was under no duty to look out for other cars or to slow down. To begin, we are unaware of any law which grants a “right of exclusive possession” of an intersection - under any circumstances and Brown does not cite any such law to this court. The court in Ryan v. Monson (1961), 33 Ill. App. 2d 406, 422, has noted “ ‘ “it has been held consistently that a right of way is not an absolute right and it cannot be asserted regardless of circumstances, distance, or speed.” ’ ” Brown’s arguments and conclusion, above, cannot be accepted by this court.

The second issue is whether the trial court ruled incorrectly on certain objections to evidence and argument. Because the reversal based upon the first issue necessitates a new trial, the complained of errors may not again arise. However, to be sure, we shall evaluate the questions and comments of Brown’s attorney. Brown’s attorney, despite several sustained objections by G & M, repeatedly questioned investigative officer Kirby concerning the failure of certain occurrence witnesses to inform Officer Kirby of the speed of Brown’s motorcycle as it entered the intersection. Under similar circumstances, in Morgan v. Rogers (1975), 30 Ill. App. 3d 346, 351, the court found counsel’s conduct wholly indefensible and not in good faith because the jury could have been led to believe the objectional information was harmful to opposing counsel’s case. Moreover, in the instant case, none of the occurrence witnesses had yet testified in the trial. Brown should not have been allowed to impeach testimony that was not yet presented to the jury. Brown, on appeal, attempts to justify the questions as necessary to counteract misconduct of G & M in the opening statement, wherein G & M’s counsel told the jury they would be presented with testimony that Brown traveled at 30 to 50 miles per hour. Since the case had been tried once before, G & M knew there would be no such testimony. G & M’s attorney explained that the statement was the result of a typographical error in his notes, and apologized to the jury for the error during closing argument. Courts have allowed otherwise improper comments during closing argument where the comments were invited by opposing counsel’s own improper statements during closing arguments. However, we have not been made aware of any decision which allowed an attorney to ask improper questions and make improper comments during the questioning of witnesses in order to counteract a misstatement made by opposing counsel during opening statement.

G & M also objected to comments made by Brown’s attorney during G & M’s questioning of Mr. Mason, a passenger on Brown’s motorcycle. G & M asked of Mason, “You are not sure whether or not he was even moving?” Brown’s attorney’s objection was “I object to that; your Honor he has given him his answer. He tried to shut out the horror of the impending death.” The comment of “impending death” appears to be an improper attempt to prey upon the emotions of the jury. We do not subscribe to Brown’s explanation that the comments were simply excusable manifestations of “human emotions involved in the exchange.”

Lastly, the record contains an interesting colloquy wherein Brown’s attorney attempted to impeach Mr. Strader with a prior statement. G & M demanded that Brown lay the proper foundation by apprising the witness of the time and place of the statement, the names of persons present and the statement. In the presence of the jury, Brown’s attorney glibly retorted that “the witness may know exactly what I am talking about. If he does, I don’t have to do all the legal stuff. Let’s get down to the human part of this.” Brown’s attorney’s statement was not simply improper, it was inexcusable. The trial court did not and could not have rectified the impropriety of the statement by admonishing the jury. In the presence of judge, jury and observers, Brown’s attorney ridiculed a basic aspect of a trial — the rules of evidence.

The third issue is whether the conduct of Brown’s attorney in closing argument was improper. Brown’s attorney argued that “the doctor was making sawdust out of a healthy bone.” The doctor drilled a few holes into Brown’s hip in order to insert pins to support his injured hip. The statement was improper because it did not state or refer to facts in issue and served to unfairly bias the jury by appealing to the emotions of the jury.

Issues four, five and six can be decided summarily. They are stated as follows: (4) Whether certain impeaching evidence was improperly excluded; (5) Whether G & M’s attorney should have been able to use a flip chart in closing argument; (6) Whether G & M’s offer of proof with respect to the impeaching of Terry Mason should have been accepted and defendant should have been allowed to cross-examine Terry Mason about the telephone conference he had with paralegal O’Connor. The scope of cross-examination and the use of a flip chart during closing argument are matters within the sound discretion of the trial court. After reviewing the record, we cannot find that the trial court abused its discretion.

For the reasons set forth above, the judgment of the lower court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

SCOTT, J., concurs.

JUSTICE BARRY,

specially concurring:

I agree with the results reached and most all of the observations of the majority, and, by my view, a fair trial was impossible. Proper intervention by the court may have cured the adverse situation and circumstances presented early in the trial, but I am at a loss to determine how so, short of ordering a mistrial early on.

I would place the primary blame upon counsel for the defense. The defense obviously has known the facts of this case very well for some eight or nine years; the case has been tried fully before, appealed twice before; one of the three defense witnesses’ testimony was in fact read into the record from the previous trial; and defense counsel misstated anticipated evidence in his opening statement, both with regard to plaintiff’s speed and the color of the traffic light control at the intersection. I trust the defense will not introduce error so as to create another opportunity for a mistrial when this matter is retried. The plaintiff’s questionable self-help tactics will then be unnecessary as a retort.

I expect the participants will recognize what is proper professional behavior during the course of the new trial. It is unfair to their clients who have paid with their time and money to do otherwise, as they have here for a span of many years.


author: JUSTICE BARRY

text:
    JOHN COFFEY, as Father and Next Friend of John F. Coffey, Infant, Plaintiff-Appellant, v. DALE E. HANCOCK, Defendant-Appellee.
    Third District
    No. 3—83—0269
    Opinion filed March 6, 1984.

      Alan R. Bruggeman, of Condon & Bruggeman, of New Lenox, for appellant.
    John J. McGarry, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, John E Coffey, was five years old on June 24, 1978, when he drove his bicycle out of a driveway onto Old Wolf Road and into the path of an automobile driven by defendant, Dale Hancock. The child suffered serious personal injuries as a result of the collision that occurred. This suit, sounding in negligence, was initiated on young John’s behalf by his father, also named John Coffey. A jury trial was held in the circuit court of Will County, and a verdict in favor of the defendant was returned. Judgment was entered thereon, and the plaintiff’s motion for a new trial was denied. This appeal by plaintiff followed. We affirm.

Before addressing the issues on appeal, we must dispose of defendant’s “motion to strike appellant’s brief and to dismiss appeal.” The motion was spawned by the abbreviated format of plaintiff’s “statement of facts” from which plaintiff proceeded to argue four major issues. Specifically, the “statement of facts” as presented by plaintiff consists of the following recitation:

“On June 24, 1978, at approximately 12:08 P.M., JOHN F. COFFEY, an infant of the age of five years, was riding his bicycle along with one of his friends. COFFEY rode his bicycle out of a driveway and entered Old Wolf Road, a paved public street running north and south within Will County, Illinois. At the same time, the Defendant, DALE E. HANCOCK, was driving his 1973 Ford automobile in a northerly direction along Old Wolf Road. The Defendant’s automobile struck JOHN F. COFFEY causing various physical injuries to JOHN F. COFFEY. In his attempt to stop, the Defendant’s automobile left skid marks on Old Wolf Road of approximately 60 feet in length.
As a result of the collision, JOHN H. COFFEY, as father and next friend of JOHN F COFFEY, brought this action alleging that the Defendant, DALE HANCOCK had been negligent in causing the collision. The cause went to trial and the jury, after hearing the evidence, rendered a verdict for the Defendant. The trial judge entered the judgment on the jury verdict from which this appeal is taken by the Plaintiff.”

The issues plaintiff asks us to review are: “(1) whether the trial court ruled correctly on objections to the admission of the reconstruction expert testimony; (2) whether the trial court ruled correctly on objections to the improper questioning of an expert witness; (3) whether the jury was properly instructed on the law of comparative negligence; and (4) whether the plaintiff was unfairly prejudiced by certain remarks made by the Defendant’s counsel during his closing argument.”

Defendant’s motion makes two cogent points: that the recitation of facts falls short of the requirements of Supreme Court Rule 341(e)(6) (87 Ill. 2d R. 341(e)(6)); and that this court is not a depository in which an appellate may dump its arguments without factual foundation in hopes that we will sift through the entire record to find support for a determination favorable to appellant’s position. Suffice it to say, we are a tribunal of justice and are not inclined on this occasion to grant the defendant the severe sanctions he seeks by way of relief. We elect not to deprive the parties-in-interest of the benefit of our views on the substantive issues. Consequently, we are denying defendant’s motion which was taken with the case.

As part of his case in chief, plaintiff’s counsel called the defendant as the sole eyewitness capable of testifying to the circumstances surrounding the 1978 accident. Hancock testified that on the date of the accident, around noon, he was traveling from his home on Cleveland Road in Mokena to a friend’s home, also in Mokena. The evidence established that the day was warm and clear and the pavement was dry. Hancock proceeded west along Cleveland Road to the intersection with Old Wolf Road, and then north. Hancock estimated that his speed was 5 to 10 miles, per hour on the turn, although he did not recall having looked at his speedometer at any point immediately prior to hitting the minor plaintiff.

Deputy Frederick Osborne of the Will County sheriff’s office testified that he was called out to investigate the scene of the accident on June 24, 1978. Osborne had served with the sheriff’s office for KWa years and had received training in accident reconstruction at Northwestern University’s Traffic Institute. Osborne marked the scene, took measurements and directed the evidence technician to take several photographs. Osborne described the road surface as a tar-and-chip composition. The road width varied between approximately 17 to 18 feet, and a 4% downgrade in the road was noted between the point where Hancock entered Old Wolf Road and the point of impact with the minor plaintiff. It was determined that Hancock’s car had left 60 feet of skid marks. The rear of the vehicle had yawed to the left approximately 15 feet after entering the skid and there was an approximately three-foot deviation between the front wheel tracks and the rear wheel tracks where the skid marks stopped. Osborne was not asked on direct examination whether the defendant’s speed was determinable on the basis of the skid marks he left.

In cross-examination, however, Osborne testified that at the traffic institute he had learned a formula for determining the speed of a vehicle by examining skid marks. The mathematical formula required inclusion of a figure known as the “drag factor.” The drag factor, according to Osborne, was determinable by conducting a test stop at certain speeds with an identical car operated under the same conditions as existed during the accident in question. In the instant case, the drag factor had not been determined by him because the policy of the sheriff’s office was to use their staff to perform the tests only in fatal accident cases. Finally, in cross-examination, Osborne stated that the traffic institute taught its trainees how to determine the drag factor without conducting like-circumstances tests as well. Osborne stated that he did not have a degree in engineering. He was not asked to give the formula for determining the drag factor, nor was he asked to give his opinion as to the speed of defendant’s car based on his observations.

Over the objections of plaintiff’s counsel, the trial court permitted defendant to introduce expert testimony of Williard A. Alroth, a consulting traffic engineer, on the question of the speed of defendant’s vehicle immediately prior to the accident. Although Alroth’s qualifications as an expert accident reconstruction witness were not challenged, plaintiff’s counsel argued that the expression of his opinion of the defendant’s speed would invade the province of the jury. The trial judge ruled, however, that Alroth could testify because the judge was not sure that lay jurors could interpret the significance of 60 feet of skid marks.

Alroth testified that he had reviewed photographs of the scene of the accident and had visited the scene itself the morning he was called to testify to take various measurements and observe the road surface. Alroth described the composition of the road as asphalt concrete, a mixture of stone aggregate and tar bitumen material. Alroth further explained that in this case the skid markings depicted in the photographs represented not only the tearing away of rubber particles from the vehicle’s tires, but that the friction between the braked tires and the road surface had created sufficient heat to melt some of the tar in the road surface, causing it to act as a lubricant, and appearing in the photographs as the darker markings. The melting tar phenomenon contributed to the vehicle’s decreased ability to come to a halt while in the skid.

Alroth’s examination of the scene and the photographs of the defendant's car and tires indicated that the braking system had not failed and that the tire treads were good and did not contribute as a factor in causing the skid or inability to stop prior to impact. Based on his analysis, Alroth derived a range for the drag factor of .5 to .6 and applied the formula to reach his opinion that the defendant’s vehicle was traveling between 29 and 32 miles per hour when the brakes were applied. Alroth testified that once the wheels were locked and the car was in the skid, any attempt to veer the car to the left or right would be ineffective because the car would propel forwards out of the driver’s control. Alroth explained that the yawing effect demonstrated by the skid marks in this case could have been caused by the crown in the road and the defendant’s position near its center as he skidded to a halt.

It is within the context of the foregoing facts of record that we consider the plaintiff’s first issue on appeal — whether the court’s admission of Willard Alroth’s testimony at trial constituted reversible error. Plaintiff argues that the expert’s expression of an estimated speed consistent with that approximated by the defendant unfairly bolstered the defendant’s own statement and invaded the fact-finding province of the jury. Plaintiff relies primarily on two recent cases in which accident reconstruction expert witness testimony was determined inadmissible, Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1, and Trillet v. Bachman (1981), 96 Ill. App. 3d 477, 421 N.E.2d 580.

In Peterson, an important issue in deciding whether the defendant auto dealership was guilty of any negligence concerned the speed of the subject vehicle prior to collision. The driver in that case, Elder, approximated his speed at 35 to 45 miles per hour. His two passengers gave estimates of between 40 and 50 miles per hour. Another driver testified that he was headed in the same direction as Elder and Elder passed him at 65 miles per hour or more shortly before the accident. Both the plaintiff and the defendant introduced non-eye-witness reconstruction testimony to bolster their positions on the issue of speed. Our supreme court, after reviewing relevant precedent, held that the admission of the reconstruction testimony in Peterson was reversible error. The court explained:

“Because we believe that the speed of an automobile is not a matter beyond the ken of the average juror (Delaney v. Ba-dame (1971), 49 Ill. 2d 168, 178), we hold that the circuit court erred in admitting reconstruction testimony. The jurors could draw their own conclusions on the basis of eyewitness testimony.
We do not agree, as defendant argues, that the admission of the reconstruction testimony was harmless error. As defendant points out, the estimates of speed given by reconstruction witnesses were consistent with those given by some of the eyewitnesses. These reconstruction estimates, however, contradicted the testimony of other eyewitnesses, and we cannot safely say that the jury was not influenced by the inadmissible reconstruction testimony.” Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3-4.

In Trillett, we relied on Peterson and ruled that reconstruction testimony concerning a vehicle’s speed prior to collision would be improper on retrial of the case. There, as in Peterson, both the driver and a passenger provided estimates of the vehicle’s speed at trial. Plaintiff’s motion for a continuance to procure an expert accident reconstruction witness to testify concerning speed, as determined on the basis of 120 to 130 feet of skid marks, was denied in the trial court. We found no error in that ruling:

“[T]he evidence desired by the plaintiffs would have been inadmissible. Our supreme court has held that speed of an automobile is not a matter beyond the ken of an average juror and that jurors can draw their own conclusions on the basis of eyewitness testimony and hence admission of reconstruction testimony concerning speed of an automobile was error. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1.) In the instant case the plaintiff Mrs. Trillet observed the defendant’s automobile twice, and she testified as to its speed and movement. The defendant testified as to the speed of his automobile at various points in its progress. The jury also had before it physical facts as to length and placement of skid marks, and photographs of the damaged vehicles. With such evidence it was not beyond the ability of the jury to determine the speed of the vehicles. The case of Peterson is controlling in that the testimony of a reconstruction expert would have been inadmissible and thus the motion for continuance was properly denied.” Trillet v. Bachman (1981), 96 Ill. App. 3d 477, 481, 421 N.E.2d 580, 583-84.

Despite the apparently broad language of Peterson and Trillet condemning the use of accident reconstruction testimony for purposes of determining a vehicle’s speed, we do not find these decisions controlling here.

The admission of expert testimony concerning a vehicle’s speed does not automatically result in reversible error in every case. Generally, where eyewitnesses to an accident are available to testify as to speed, reconstruction testimony may not be introduced as a substitute for the direct lay eyewitness testimony. Where differences in lay opinions are introduced, essentially the trier of fact is faced with an issue of witness credibility, a matter peculiarly appropriate for jury determination without the assistance of expert testimony which, if admitted in such circumstances, would tend merely to overpersuade in favor of the party introducing it. However, an exception to the foregoing rule of nonadmissibility obtains and is unaffected by the decisions in Peterson and Trillett where knowledge and application of principles of physics and chemistry are necessary to the jurors’ proper interpretation of a vehicle’s speed based on the physical evidence of an accident. In such a case, the trial judge, in the exercise of his discretion, may admit accident reconstruction testimony by a qualified expert in addition to eyewitness testimony (Plank v. Holman (1970), 46 Ill. 2d 465, 264 N.E.2d 12), and the trial judge’s determination will not be disturbed on appeal unless it is clearly shown that he abused his discretion. Jamison v. Lambke (1974), 21 Ill. App. 3d 629, 316 N.E.2d 93.

As observed by defendant on appeal, the factual situation in the present case is comparable to that of Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128. In Diederich, a wrongful-death action, at least three eyewitnesses to the accident testified and estimated that the defendant’s car was traveling between 30 and 50 miles per hour prior to the impact with plaintiff’s decedent. Plaintiff called as a witness the police officer who investigated the scene of the accident. On direct examination, the officer testified that the defendant’s car left 63 feet of skid marks.

In cross-examination, over plaintiff’s objection, the officer was permitted to use a nomograph to explain the skid marks. He approximated that the defendant was traveling a minimum of 34 miles per hour, but he might have been going faster.

On appeal, the court found that the investigating officer’s testimony respecting the speed of defendant’s car was reversible error. (Diederich v. Walters (1975), 31 Ill. App. 3d 594, 334 N.E.2d 283.) The appellate decision was reversed by the supreme court. The court’s reasoning follows:

“Even if the testimony in question was improperly admitted, we do not concur that it constituted reversible error on the facts of this case. It will be recalled that it was the plaintiff who first elicited the testimony from the police officer as to the length of the skid marks. On cross-examination, the defendant attempted to explain the meaning of the skid marks by eliciting the nomograph testimony. On redirect examination, it was clearly brought out that the nomograph could only give an approximate minimum speed the car was traveling at the time the skid marks were laid down. *** It appears to us that the net effect of the investigating officer’s testimony regarding his use of the nomograph was that the defendant’s car was traveling no less than 34 miles per hour and could well have been traveling faster at the time of the occurrence. When viewed in the context of the other testimony, including that of eyewitnesses as to the speed of the car, the admission of the nomograph evidence in our opinion did not cause prejudicial error. Diederich v. Walters (1976), 65 Ill. 2d 95, 104-05, 357 N.E.2d 1128, 1132-33.

We do not read the Diederich opinion as holding that the trial court’s evidentiary ruling was necessarily erroneous.

In the case before us, unlike Diederich, there was no available eyewitnesses to the accident, other than the defendant himself. Thus, a stronger case is presented for admission of the reconstruction expert’s testimony. Within the framework of the trial in the present case, we believe the trial court properly ruled that the facts presented during plaintiff’s case called for application of the exception to the rule disfavoring accident reconstruction testimony and that expert witness Alroth’s testimony would be helpful to the finders of fact. This is so in part because plaintiff’s counsel initiated testimony about the skid marks and emphasized to the jurors in opening and closing argument that they were 60 feet in length. The plaintiff’s counsel did not offer an estimate of speed through the investigating police officer or any further explanation of the significance of the skid marks.

When called at trial to testify in the plaintiff’s case in chief, Hancock stated in response to counsel’s specific inquiry that he could not remember having looked at his speedometer at any time between the moment when he turned from Cleveland on to Old Wolf Road and the moment when his car struck the plaintiff. Later, during presentation of the defendant’s case, Hancock provided his estimate of 25 to 30 mEes per hour. In cross-examination, plaintiff’s counsel again brought up the matter of the speedometer, this time asking whether the defendant had ever worked on it and whether it worked on the date of the accident. To this, the defendant responded that he had done no mechanical work on the instrument and that it was working when the accident occurred.

It is clear to us that plaintiff’s counsel was attempting to impeach the defendant’s testimony about his driving speed prior to the accident and to use both the fact that the defendant could not state that his estimate was based on a check of the instrument panel and the measured length of the skid marks to argue that he must have been going faster than 30 miles per hour. In effect, plaintiff’s counsel invited the jury to disbelieve the defendant and then to speculate that the defendant’s speed was excessive. The sole reason for plaintiff introducing evidence of the skid marks and their length through the police officer without offering any estimate of speed by the police officer was to ask the jury to translate the fact of the skid marks into a conclusion of the defendant’s excessive speed. Of further significance is the fact that it was plaintiff’s witness, Osborne, who introduced a partial foundation for applying a mathematical formula to verify the speed of a vehicle based on skid marks and then offered no facts from which speed could be calculated in this case.

On these facts, we cannot state that the trial court abused its discretion in permitting the defendant to provide expert testimony to assist the jury in interpreting the skid marks. While it is true the expert testimony served to bolster the defendant’s approximation of his speed, we cannot say that the introduction of Alroth’s testimony deprived plaintiff of a fair trial. (Cf. Peterson; Trillet.) The evidence responded to one of the main thrusts of plaintiff’s case. It was generally consistent with the testimony introduced by plaintiff’s own witnesses. In the posture of this case, unlike Peterson and Trillet, the expert testimony was admissible because “it [was] necessary to rely on knowledge and application of principles of science beyond the ken of the average juror” (Plank v. Holman (1970), 46 Ill. 2d 465, 471, 264 N.E.2d 12, 15) to interpret what the skid marks meant about the speed of defendant’s vehicle.

Although we find no error in the admission of Alroth’s testimony in this case, we cannot leave this issue without observing that even if it were error, inasmuch as the testimony was invited by plaintiff’s case in chief and was not inconsistent with other testimony, its admission was harmless and neither a reversal nor remandment for a new trial would be appropriate on this basis. See Diederich v. Walters (1976), 65 Ill. 2d 95, 105, 357 N.E.2d 1128, 1132-33.

The plaintiff’s second issue concerns the adequacy of the foundation laid by defendant’s counsel prior to eliciting expert witness Alroth’s opinion of the speed of defendant’s car. The hypothetical question is no longer the only means of eliciting an expert opinion where, as here, the expert lacks first-hand knowledge of the facts. In Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, our supreme court adopted Federal Rules of Evidence 703 and 705, which permit the expert witness to base his opinion on data presented outside of court and place on the adverse party the burden of eliciting during cross-examination the facts underlying that opinion. Applying these rules to the present case, we find that no error occurred in eliciting expert witness Alroth’s opinion.

Plaintiff’s issues concerning the jury instructions and defense counsel’s closing argument are not well taken. Since plaintiff failed to tender instructions on comparative negligence to cure any confusion that might have resulted from giving Illinois Pattern Jury Instruction, Civil, No. 11.03 (2d ed. 1971) respecting the minor plaintiff’s incapacity for contributory negligence, we need not consider the plaintiff’s arguments on appeal. Similarly, our review of defense counsel’s closing argument discloses that no objections were raised so as to preserve any error that may have been committed. Furthermore, the specific comments complained of by plaintiff were not so prejudicial or inappropriate as to be beyond the bounds of fair argument given the matters raised in the trial of this cause.

For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

Affirmed.

Alloy and SCOTT, JJ., concur.