Defendant maintains, and the postconviction court found, that defendant was prejudiced because Adams' grand jury testimony would have provided a significant opportunity for impeachment by omission of the State's key eyewitness and that the stipulation was inadequate because it had no context. "`[T]he omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would state such fact, if true, may be shown to discredit his testimony as to such fact.'" People v. Henry, 47 Ill. 2d 312, 320-21, 265 N.E.2d 876, 882 (1970), quoting Carroll v. Krause, 295 Ill. App. 552, 562 (1938); People v. Owens, 65 Ill. 2d 83, 357 N.E.2d 465 (1976); 3A J. Wigmore, Wigmore on Evidence § 1042, at 1058 (3d ed. 1940) ("the underlying test is, would it have been natural for the person to make the assertion in question?"). The admissibility of impeachment evidence is a matter within the sound discretion of the trial judge.
In People v. Henry (1970), 47 Ill.2d 312, 320, 265 N.E.2d 876, our supreme court stated that an inconsistency in the literal sense is not always required for impeachment. The court cited the earlier case of Carroll v. Krause (2d Dist. 1938), 295 Ill. App. 552, 15 N.E.2d 323, where a witness testified that an auto in which the plaintiff was riding had but one headlight, although at an earlier inquest the witness had not mentioned this fact. The court in Krause held that the prior statement was admissible for impeachment purposes, even though the witness had not been asked about the auto's headlights at the inquest, saying:
Further, it is inherently improbable that a husband, whose wife had just driven his car into a ditch and left him there with the car at about 2:00 a.m., would not have mentioned the incident to an investigating officer, either at the scene or in the lengthy conversations which ensued at the police station. Cf. Carroll v. Krause, 295 Ill. App. 552, 15 N.E.2d 323. Under all the circumstances of this case, it was not error for the trial judge to disbelieve and totally disregard the testimony of defendant and his wife. People v. Schehr, 88 Ill. App.2d 287, 292-293, 232 N.E.2d 566. The trial judge and not the reviewing court has the opportunity to observe the witnesses and is, therefore, in a superior position to evaluate credibility.
The question was one of fact for the jury. Miller v. Burch, 254 Ill. App. 387, 394; Carroll v. Krause, 295 Ill. App. 552, 568, 15 N.E.2d 323; Wise v. Kuehne Mfg. Co., 322 Ill. App. 26, 31, 32, 53 N.E.2d 711; and Budds v. Keeshin Motor Express Co., 326 Ill. App. 59, 61 N.E.2d 579. Finally defendant contends that the trial court erred in refusing one of defendant's tendered instructions.
A prior omission will constitute an inconsistency only where it was made under circumstances rendering it incumbent upon the witness to, or be likely to, state such a fact. See Ball v. State, 43 Ariz. 556, 559, 33 P.2d 601, 602 (1934); Carroll v. Krause, 295 Ill. App. 552, 562, 15 N.E.2d 323, 328 (1938); Asato v. Furtado, 52 Haw. 284, 288, 474 P.2d 288, 292 (1970); Sims v. State, 530 P.2d 1176, 1179-1180 (Wyo. 1975). The rationale for allowing impeachment in these circumstances is that "a failure to assert a fact, when it would have been natural to assert it, amounts in effect to assertion of the non-existence of the fact."
"It would appear that no prior inconsistent statement in the usual sense was involved, but inconsistency in the literal sense is not always required for impeachment. In Carroll v. Krause, 295 Ill. App. 552, the witness testified that an auto in which the plaintiff was riding had but one headlight. At an earlier inquest the witness omitted mention of the fact of a single headlight.
" 3A Wigmore, Evidence, p. 1056, § 1042 (Chadbourn rev. 1970). The rule is stated another way in Carroll v. Krause, 295 Ill. App. 552, 562, 15 N.E.2d 323, 328: "* * * the omission of a witness to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would, state such a fact, if true, may be shown to discredit his testimony as to such fact."
It would appear that no prior inconsistent statement in the usual sense was involved, but inconsistency in the literal sense is not always required for impeachment. In Carroll v. Krause, 295 Ill. App. 552, the witness testified that an auto in which the plaintiff was riding had but one headlight. At an earlier inquest the witness omitted mention of the fact of the single headlight.
Moore v. East St. Louis Suburban Ry. Co., 54 S.W.2d 767; Rohrer v. Denton, 306 Ill. App. 325, 28 N.E.2d 572; Cunningham v. Toledo, St. L. W.R. Co., 260 Ill. 589, 103 N.E. 593. (7) Defendant Schuller cannot be permitted to say that he did not see the railroad tracks, when if he had properly exercised his faculties of sight, he could have seen it. Thomas v. Buchanan, 357 Ill. 270, 192 N.E. 215; Briske v. Village of Burnham, 379 Ill. 193, 39 N.E.2d 976, affirming 308 A. 531, 32 N.E.2d 349; Dee v. City of Peru, 343 Ill. 36, 174 N.E. 901; Reed v. Lyford, 311 Ill. App. 486, 36 N.E.2d 610; Secrist v. Raffleson, 326 Ill. App. 489, 62 N.E.2d 36. (8) Under Illinois Statute defendant required to have lights on automobile visible 200 feet ahead of motor vehicle. Carroll v. Krause, 295 Ill. App. 552, 15 N.E.2d 323; Johnson v. Gustafson, 233 Ill. App. 216. (9) The evidence was sufficient tending to support the charge of willful and wanton conduct to make a jury question.
[2] The duty imposed by the statute on the operator of a motor vehicle to drive with adequate lights at night is not merely for the benefit of such operator to enable him to see and avoid injury to others, but for benefit of others to enable them to avoid injury from approaching motor vehicles. Ramirez v. Salinas, 90 S.W.2d (Tex.Civ.App.) 891. Carroll v. Krause, 295 Ill. App. 552, 15 N.E.2d 323. [3] A motion for a directed verdict admits the truth of the opposing party's evidence and of inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party.