dissenting:
I would affirm the judgment of the circuit court of Madison County. Therefore, I respectfully dissent.
The general rule regarding reconstruction testimony is that it may not be used as a substitute or supplement for eyewitness testimony where the latter testimony is available unless it is necessary to rely on knowledge and application of principles of physics, beyond the ken of the typical juror. (McGrath v. Rohde (1972), 53 Ill. 2d 56, 61-62, 289 N.E.2d 619, 622-23; Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 359, 392 N.E.2d 1, 3.) Where eyewitness testimony is available, use of experts is left to the discretion of the trial court, with the guiding principle that the use of such testimony should be the exception rather than the rule. (People v. Dietschweiler (1974), 21 Ill. App. 3d 707, 714-15, 315 N.E.2d 585, 592.) The appellate court should not find error or set aside a ruling of the trial court based on a discretionary matter unless there has been a clear abuse of discretion. (People ex rel. Illinois State Dental Society v. Norris (1979), 79 Ill. App. 3d 890, 900-01, 398 N.E.2d 1163, 1172.) In the case at bar, the trial court’s rejection of offered reconstruction testimony is in accord with the general rule, and I do not view this case as so obviously requiring a contrary result as to justify reversal.
The majority of the court in this cause appears to have been most strongly convinced in favor of the AMC’s position by the fact that plaintiff’s expert offered a reconstruction opinion regarding the accident, whereas AMC’s expert was prevented from doing so. Thus, the majority does not address the issue of whether the fact issues at trial required scientific knowledge beyond that of typical jurors. I believe that there was sufficient eyewitness description of the contact between the Torino and the Hornet, and between the bridge abutment and the Hornet, that neither party was entitled to present an accident reconstruction to the jury. (See McGrath v. Rohde (1972), 53 Ill. 2d 56, 289 N.E.2d 619, which involved facts no more complex than the instant facts, yet reconstruction testimony was held properly refused.) The trial court cannot have abused his discretion in permitting plaintiff’s expert to testify as he did, since the record does not indicate that AMC provided the court an opportunity to exercise his discretion by objecting thereto. Given such opportunity by plaintiff’s objection to defendant’s expert’s testimony, the trial court in my opinion exercised his discretion correctly.
On the preceding points the majority and I do not disagree, as the majority does not decide whether the instant eyewitness testimony sufficed to preclude reconstruction testimony. Rather, the majority is concerned that one party was permitted to introduce reconstruction evidence and the other party was precluded from doing so. I believe this lack of symmetry was more apparent than real. In response to a hypothetical question by plaintiff’s counsel based on the facts of the collisions as gleaned from Johnson’s eyewitness testimony, plaintiff’s expert testified at length concerning his theory that the described impact between the vehicles compromised the fuel tank of the Hornet, as shown by fire damage to the Torino. Defendant’s expert testified before the jury that he found no evidence of fire damage to the Torino; that the contact between the Torino and the Hornet could not have involved the Hornet’s fuel system; and that the damage to the front of the Hornet would have compromised the fuel system at the front of the vehicle. He was prevented from testifying that Johnson’s eyewitness account that the Hornet had contacted the Torino before the bridge abutment was likely the reverse of what actually happened, based on the impact damage of the two vehicles, and that the Hornet was travelling 55 miles per hour when it struck the bridge abutment, whereas Johnson had testified that the Hornet’s speed was about 45 miles per hour just prior to the accident. Thus, both experts testified before the jury regarding their opinions of the effect on the Hornet’s fuel system of the events described by the eyewitness, whereas defendant’s expert was prevented from contradicting the eyewitness account, which contradiction plaintiff’s expert had not attempted. In this context, I do not view the ruling complained of as having diminished the fairness of the trial.
Finally, AMC’s reliance on the trial court’s comments at the time of the ruling complained of is overstated. The trial court did not purport to state the entirety of the rule set forth by our supreme court regarding the admissibility of reconstruction testimony. Rather, the trial court’s comment was directed solely to the most significant fact standing against admission of the offered reconstruction, i.e., the nature of the foregoing eyewitness testimony. It is the judgment and not what else may have been said by the trial court that is on appeal; the judgment may be sustained upon any ground warranted, regardless of the reason given by the trial court. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.
Finding no other error justifying reversal, I would for the foregoing reasons affirm the judgment of the circuit court.