The trial court erred in permitting such cross-examination. The defendant relies on the case of Rzeszewski v. Barth, 324 Ill. App. 345, in which case the plaintiff complained that the defendant's counsel, on cross-examination of the plaintiff, asked about a hearing before a justice of the peace trying the driver of the third car involved in a collision between plaintiff and defendant. On direct examination the plaintiff had there stated that he had signed something but he had not appeared at a hearing.
We hold, therefore, that the trial judge at the second trial correctly excluded the testimony of the two witnesses relating to the speed of the Buick. Guffey v. Gale, 332 Ill. App. 207, 74 N.E.2d 730; Rzeszewski v. Barth, 324 Ill. App. 345, 58 N.E.2d 269, 276; Hanck v. Ruan Transp. Corp., 3 Ill. App.2d 372, 122 N.E.2d 445, 449. Exclusive of the testimony relating to speed, we have the identical circumstantial evidence upon which to determine the question of the deceased's negligence that we had in determining whether defendant was negligent.
The Supreme Court of Arizona in Morris et al. v. Aero Mayflower Transit Co. et al., 73 Ariz. 390, 242 P.2d 279, approved excluding evidence of the speed of a truck four or five blocks away from the place of collision. A similar holding was made in Rzeszewski et al. v. Barth, 324 Ill. App. 345, 58 N.E.2d 269. In Cornett v. Commonwealth, 282 Ky. 322, 138 S.W.2d 492, 494, the Supreme Court of Kentucky said:
In the following cases where a driver confronted with another car approaching on the wrong side of the road turned to his right and successfully avoided a collision with the approaching car, but in doing so struck a third car or a pedestrian, it has been held that a finding that he acted with reasonable care under the circumstances was justified. Webb v. Hardin, 53 Ariz. 310, 89 P.2d 30; Scaletta v. Silva, 52 Cal.App.2d 730, 126 P.2d 898; Rzeszewski v. Barth, 324 Ill. App. 345, 58 N.E.2d 269; Moreland's Adm'r. v. Stone, 292 Ky. 521, 166 S.W.2d 998; MacIntyre v. Waggoner and Inland Motor Co., supra; Annotation 47 A.L.R.2d 123 et seq. See Hart v. Ruduk, 253 N.Y.S. 615, 233 A.D. 453; Hogge v. Anchor Motor Freight, 277 Ky. 460, 126 S.W.2d 877.
The totality of facts in this case distinguish it from those cases where prior acts of a driver have been excluded because they could have changed innumerable times within a short span of time and distance. (See, e.g., Flesberg v. Prince Warehouse Co. (1962), 37 Ill. App.2d 22, 184 N.E.2d 813 (crossing the center line); Hanck v. Ruan Transport Corp. (1954), 3 Ill. App.2d 372, 122 N.E.2d 445 (same); see also, e.g., Eleopoulos, 94 Ill. App.3d at 600, 418 N.E.2d at 984-85 (driver distracted while looking for something in the glove compartment); Cooper v. Cox (1961), 31 Ill. App.2d 51, 175 N.E.2d 651 (speed); Rzeszewski v. Barth (1944), 324 Ill. App. 345, 58 N.E.2d 269 (same).) The relevant time period in this case was sufficiently short to support the reasonable inference that plaintiff continued his shoulder riding, or at least his passing on the right, from the point of Rhodes' observations to the scene of the accident.
This contention ignores that Russell was acting in an emergency and in fear of his own life. Persons who have to act in an emergency are not to be judged in the light of hindsight, but are to be judged by the standard of what a prudent person would be likely to do under the circumstances presented. ( Rzeszewski v. Barth (1944), 324 Ill. App. 345, 354-55, 58 N.E.2d 269, 274.) It was entirely reasonable for Russell to take evasive action. Further, in light of the blowout and decedent's loss of control of his own vehicle, we must conclude as a matter of law that Russell's failure to adopt a different evasive action was not the proximate cause of decedent's death.
Further, defendant's testimony that the car in front of him suddenly braked could be viewed by the jury as bringing defendant face to face with an emergency. In Rzeszewski v. Barth (1944), 324 Ill. App. 345, 354-55, 58 N.E.2d 269, appeal denied, 326 Ill. App. xv, the court said: "* * * Persons who have to act in a sudden emergency are not to be judged in the light of after events, but are to be judged, under all the circumstances of the case, by the standard of what a prudent person would have been likely to do under similar circumstances.
Defendant argues that their testimony was irrelevant and prejudicial. In support of his argument defendant cites several cases in which courts have determined evidence was irrelevant because it was too remote in time or distance from the collision: Denton v. Midwest Dairy Products Corp. (1936), 284 Ill. App. 279, 1 N.E.2d 807 (truck driven at an excessive speed six miles from the collision); Rzeszewski v. Barth (1944), 324 Ill. App. 345, 58 N.E.2d 269 (speed six blocks from the collision); Guffey v. Gale (1947), 332 Ill. App. 207, 74 N.E.2d 730 (speed three-quarters of a mile from the collision); Pittman v. Duggan (1949), 336 Ill. App. 502, 84 N.E.2d 701 (speed in town, one mile from collision out of town on the open road); Hanck v. Ruan Transport Corp. (1954), 3 Ill. App.2d 372, 122 N.E.2d 445 (truck crossed center line 800 feet east of collision); and Flesberg v. Prince Warehouse Co. (1962), 37 Ill. App.2d 22, 184 N.E.2d 813 (truck crossed center line one-half mile south of collision). Defendant also cites Brown v. Nale (1969), 106 Ill. App.2d 238, 245 N.E.2d 9, in which the Fourth District concluded that the cases in which evidence has been excluded as too remote usually involved driving which could change in a short span of time or distance. Whether the evidence is to be excluded is, however, within the sound discretion of the trial judge.
[4] The cases in which evidence of driving has been excluded as remote usually concern acts of the driver which can be changed innumerable times within a short span of time and distance, as where a vehicle is driven with a wheel over the center line. Flesberg v. Prince Warehouse Co., Inc., 37 Ill. App.2d 22, 184 N.E.2d 813; Hanck v. Ruan Transp. Corp., 3 Ill. App.2d 372, 122 N.E.2d 445, or there is evidence of speed which may quickly be altered or interrupted. Rzeszewski v. Barth, 324 Ill. App. 345, 58 N.E.2d 269; Denton v. Midwest Dairy Products Corp., 284 Ill. App. 279, 1 N.E.2d 807. The trial court, however, has the discretion to admit evidence where the facts and circumstances support a reasonable inference that the conduct continued from the point of observation to the place of collision. Cooper v. Cox (speed), 31 Ill. App.2d 51, 175 N.E.2d 651; Driessens v. Verkruyse (speed), 46 Ill. App.2d 87, 196 N.E.2d 353.
"The existence of a sudden emergency or imminent peril does not excuse the driver of the vehicle from using that degree of care and caution which an ordinary prudent and careful person would have exercised under the like facts, circumstances and emergency, and whether such degree of care and caution was so exercised was for the jury to determine." In Rzeszewski v. Barth, 324 Ill. App. 345, 58 N.E.2d 269 (1944), this test was stated by the court (p 354): "Persons who have to act in a sudden emergency are not to be judged in the light of after events, but are to be judged, under all the circumstances of the case, by the standard of what a prudent person would have been likely to do under similar circumstances.