In Smith v. Tri-R Vending (2nd Dist. 1993), 249 Ill. App. 3d 654, 619 N.E.2d 172, 188 Ill. Dec. 808, a "passenger" in a truck was killed when a driver struck a light pole. In Smith, the plaintiff's deceased was the party who was claiming application of the Dead Man's Act. Smith sought to bar the defendant from introducing the deposition and affidavit of its deceased agent, the driver of the truck. Facts adduced at deposition were adverse to plaintiff's cause, indicating plaintiff was a trespasser. Smith's cause was dismissed on motion for summary judgment, as without the facts adduced in the deposition, plaintiff could not establish the elements of a cause of action in negligence. The deposition and affidavit were filed by the defendant in support of its motion to dismiss. Plaintiff Smith invoked the Dead Man's Act which resulted in a finding that, as defendant, the only occurrence witness, could not testify, and no evidence was presented by plaintiff to rebut the motion, a cause for negligence could not stand.