(M. Graham, Cleary Graham's Handbook of Illinois Evidence § 401.2 (5th ed. 1990).) Because a "Day in the Life" film is a form of motion picture it is admissible evidence on the same basis as photographs. ( Amstar Corp. v. Aurora Fast Freight (1986), 141 Ill. App.3d 705.) Consequently, before a "Day in the Life" film can become evidence at trial it must first pass a two-prong test.
Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill. App. 3d 72, 83 (1993). ¶ 19 It is proper to exclude experiments to determine the extent of visibility prior to the accident in question if the conditions are not substantially similar. See Kent v. Knox Motor Service, Inc., 95 Ill. App. 3d 223, 226 (1981) (where type of vehicle, light condition, and conditions of highway in line-of-sight test were not the same, nor substantially the same, as during the accident, the trial court's refusal to admit experiment to determine extent of driver's visibility was not an abuse of discretion); Amstar Corp. v. Aurora Fast Freight, 141 Ill. App. 3d 705, 709 (1986) (proper to exclude videotape where the difference in vantage point from position of video camera and position of driver was significant and misleading); French v. City of Springfield, 65 Ill. 2d 74, 81-82 (1976) (city was prejudiced by improper admission of motion picture, which depicted area where accident occurred and preconditioned the minds of the jurors to accept the plaintiff's theory of the case). This court recently addressed the same issue presented here in Johnson v. Bailey, 2012 IL App (3d) 110016, and rejected arguments similar to those presented by the McDonough County defendants.
¶ 19 It is proper to exclude experiments to determine the extent of visibility prior to the accident in question if the conditions are not substantially similar. See Kent v. Knox Motor Service, Inc., 95 Ill.App.3d 223, 226, 50 Ill.Dec. 804, 419 N.E.2d 1253 (1981) (where type of vehicle, light condition, and conditions of highway in line-of-sight test were not the same, nor substantially the same, as during the accident, the trial court's refusal to admit experiment to determine extent of driver's visibility was not an abuse of discretion); Amstar Corp. v. Aurora Fast Freight, 141 Ill.App.3d 705, 709, 96 Ill.Dec. 31, 490 N.E.2d 1067 (1986) (proper to exclude videotape where the difference in vantage point from position of video camera and position of driver was significant and misleading); French v. City of Springfield, 65 Ill.2d 74, 81–82, 2 Ill.Dec. 271, 357 N.E.2d 438 (1976) (city was prejudiced by improper admission of motion picture, which depicted area where accident occurred and preconditioned the minds of the jurors to accept the plaintiff's theory of the case). This court recently addressed the same issue presented here in Johnson v. Bailey, 2012 IL App (3d) 110016, 359 Ill.Dec. 931, 967 N.E.2d 961, and rejected arguments similar to those presented by the McDonough County defendants.
¶ 19 It is proper to exclude experiments to determine the extent of visibility prior to the accident in question if the conditions are not substantially similar. See Kent v. Knox Motor Service, Inc., 95 Ill.App.3d 223, 226, 50 Ill.Dec. 804, 419 N.E.2d 1253 (1981) (where type of vehicle, light condition, and conditions of highway in line-of-sight test were not the same, nor substantially the same, as during the accident, the trial court's refusal to admit experiment to determine extent of driver's visibility was not an abuse of discretion); Amstar Corp. v. Aurora Fast Freight, 141 Ill.App.3d 705, 709, 96 Ill.Dec. 31, 490 N.E.2d 1067 (1986) (proper to exclude videotape where the difference in vantage point from position of video camera and position of driver was significant and misleading); French v. City of Springfield, 65 Ill.2d 74, 81–82, 2 Ill.Dec. 271, 357 N.E.2d 438 (1976) (city was prejudiced by improper admission of motion picture, which depicted area where accident occurred and preconditioned the minds of the jurors to accept the plaintiff's theory of the case). This court recently addressed the same issue presented here in Johnson v. Bailey, 2012 IL App (3d) 110016, 359 Ill.Dec. 931, 967 N.E.2d 961, and rejected arguments similar to those presented by the McDonough County defendants.
We find the defendants' argument is misplaced. In Amstar Corp. v. Aurora Fast Freight (1986), 141 Ill. App.3d 705, 490 N.E.2d 1067, we held that a road's shoulder is part of a "controlled-access highway" for the purposes of section 11-1303(a)(1)(j). ( Amstar, 141 Ill. App.3d at 709, 490 N.E.2d at 1070.) Under Amstar, whether the truck was located on the shoulder or in a traveled lane is immaterial. For the statute's purposes, the tow truck would still have been located on the controlled-access highway.
Defendants again rely on the Yates court's discussion of the unique dangers associated with a vehicle reentering traffic from the left shoulder of a roadway. In Amstar Corp. v. Aurora Fast Freight, 490 N.E.2d 1067, 141 Ill. App. 3d 705, 96 Ill. Dec. 31 (Ill.App.Ct. 3rd Dist. 1986), the court found that a "controlled-access highway" includes the shoulder. The court drew no distinction between the right and left shoulders, finding that the trial court had properly instructed the jury that the defendant's act of parking on the right shoulder of the highway in violation of the statute was prima facie evidence of negligence.
See First Springfield, 720 N.E.2d at 1071 ("[I]f the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury."). Further, because Defendants failed to show that the no-parking regulation was intended to protect human life or property, IPI 60.01 does not apply. Illinois courts have not addressed whether no-parking regulations under section 1303 are intended to protect human life or property, but have held that other provisions of section 1303 were so intended. See Amstar Corp. v. Aurora Fast Freight, 490 N.E.2d 1067, 1070 (Ill.App. 1986) (provision prohibiting stopping, standing or parking a vehicle on any controlled-access highway); Sheehan v. JanesvilleAuto Transport, 430 N.E.2d 131, 135 (Ill.App. 1981) (provision prohibiting parking in an intersection or within twenty feet of a crosswalk, but not municipal ordinance regulating parking to preserve residential character of neighborhood). Section 1303 does not list what areas are deemed no parking; it prohibits parking in areas that have been designated no parking by separate regulation.
However, even under the deferential abuse-of-discretion standard, my vote is the same. ¶ 68 What was the relevance of a video in this case depicting the formation of an umbilical cord hematoma, ex nihilo through the cord's complete occlusion, in 11 seconds? Defendants conceded that the hematoma did not occur in such a short time; that was the reason the jury had to be admonished each time A3 was shown. In that sense, A3 was no less unfairly prejudicial than admitting a drawing that was not drawn to scale (Slavin v. Saltzman, 268 Ill. App. 3d 392 (1994)), or a video shot from a misleading vantage point (Amstar Corp. v. Aurora Fast Freight, 141 Ill. App. 3d 705 (1986)). In fact, A3 was uniquely worse.
Moreover, "where a photograph might confuse or mislead the jury it may be inadmissible." Amstar Corp. v. Aurora Fast Freight, 141 Ill.App.3d 705, 708, 96 Ill.Dec. 31, 490 N.E.2d 1067, 1070 (1986). Whether to admit a photograph rests within the sound discretion of the trial court, and we will not reverse that decision absent an abuse of discretion. Baraniak v. Kurby, 371 Ill.App.3d 310, 316–17, 308 Ill.Dec. 949, 862 N.E.2d 1152, 1158 (2007).
Reversal is warranted where the erroneous instruction clearly misled the jury and resulted in prejudice to the appellant. Amstar Corp. v. Aurora Fast Freight, 141 Ill. App. 3d 705, 490 N.E.2d 1067 (1986). The instruction in the case sub judice failed to state the law accurately, as it did not inform the jury that the warrantor was required to fix the automobile within a reasonable time or a reasonable number of attempts.