Appeal by plaintiff from the Circuit Court of LaSalle county;
the Hon. ROY WILHELM, Judge, presiding. Heard in this court at
the October term, 1949. Judgment reversed. Opinion filed January
10, 1950. Released for publication February 9, 1950.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
Plaintiff, Frank T. Comiskey, is prosecuting this appeal from a judgment notwithstanding the verdict, entered by the circuit court of LaSalle county, in a proceeding for damages arising out of a collision between plaintiff's car, and the wrecker belonging to defendants, Alvin Engel and John Charlier, doing business as Ottawa Salvage Company.
In determining whether the judgment notwithstanding the verdict was in accordance with law, the primary inquiry herein is whether there is any evidence supporting the essential legal averments of plaintiff's claim.
The evidence, consisting of the testimony of plaintiff, his son, and defendant Alvin Engel, is largely controverted. It appears, however, that on December 30, 1944, at about 1:00 a.m., defendant Alvin Engel, in response to a call, brought defendants' wrecker to a point about three and one-half miles south of Ottawa, Illinois, on highway No. 23, where an automobile was stuck in a ditch along the roadway. There were patches of ice on the road, which was approximately twenty feet wide, and some snow on the shoulders, which extended about seven and one-half feet on each side of the road.
Defendant had apparently already towed the car from the ditch, taken up the flares, and was about to depart, when plaintiff's car, driven by his son, approached from the north, over the crest of the knoll. Defendant, Alvin Engel, testified that the wrecker was then facing north, some 500 feet from the top of the hill, on the west shoulder of the highway, except for the right front wheel, which extended approximately two feet onto the highway. He asserted further, that he had sent the driver of the towed car ahead with a flashlight to warn approaching traffic.
Plaintiff's son, however, stated that there was no one with, or without, a flashlight standing in the road, and that he first perceived defendants' wrecker when he drove over the crest of the knoll, and saw the headlights beaming directly at him in his lane of the highway, approximately 100 feet ahead. He had been traveling at about thirty to thirty-five miles per hour from Ottawa to Streator, Illinois, and immediately applied his brakes. It is uncontroverted that the brakes held at first, but that the car slid ahead on a patch of ice until it collided with the right front side of the wrecker, driving it back some fifteen feet, and causing damage to plaintiff's car in the stipulated amount of $692.18.
The trial court denied defendants' motions for a directed verdict presented at the end of plaintiff's evidence, and again at the end of all the evidence, and submitted the cause to the jury. A verdict for plaintiff in the amount of $692.18 was returned, whereupon the circuit court granted defendants' motion for judgment notwithstanding the verdict, and denied plaintiff's motion for judgment on the verdict, and defendants' alternative motion for a new trial. From this judgment notwithstanding the verdict, plaintiff has appealed.
It is clearly established that a motion for judgment notwithstanding the verdict may be sustained only where it appears that after a consideration of all the evidence, and reasonable inferences therefrom, in the aspect most favorable to plaintiff, there is a total lack of evidence necessary to prove an essential element of plaintiff's cause. (Merlo v. Public Service Co., 381 Ill. 300; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571.) If, however, there is any evidence tending to support the necessary allegations of plaintiff's claim, the motion for judgment notwithstanding the verdict must be denied. (Berg v. New York Cent. R. Co., 391 Ill. 52.)
Moreover, it is not the province of the trial court to weigh the evidence, or determine controverted questions of fact in passing upon the propriety of defendant's motion (Osborn v. Leuffgen, 381 Ill. 295), and a motion for judgment notwithstanding the verdict should be denied, even though the evidence may preponderate against the party opposing the motion, so that a verdict in his favor would be set aside when tested by a motion for a new trial. (Merlo v. Public Service Co., supra.)
The essential legal averments of plaintiff's claim are that defendants were negligent, that such negligence was the proximate cause of the damage sustained by plaintiff, and that plaintiff was in the exercise of due care.
With reference to defendants' alleged negligence, it is readily apparent that the evidence is controverted. Plaintiff asserts that defendants' wrecker was located about 100 feet from the crest of the knoll, facing north, in the wrong lane of the highway, with no flares or other warning signals other than the headlights. Plaintiff argues, therefore, that the wrongful position of the wrecker, without proper warning, constituted negligent conduct, and that a collision was a foreseeable hazard, inasmuch as the wrecker could not be seen by an approaching southbound car until it came over the crest of the hill, and was then only 100 feet from the wrecker, on a highway covered with patches of ice.
Defendants, however, maintain that after Alvin Engel picked up the flares, he sent the driver of the towed car ahead with a flashlight to warn traffic, and insist that the wrecker was 500 feet from the top of the hill, on the shoulder of the road, except for the right front wheel. Defendants explain that because of the snow it was not deemed expedient to drive completely onto the shoulder. Therefore, on the basis of the facts and circumstances, defendants contend that no negligence could be inferred from the position of the wrecker to sustain plaintiff's allegation.
It is submitted that, from the uncontroverted evidence that plaintiff's car did not leave the highway, and from the severity of the damage, the wrecker was substantially on the highway when the collision occurred. However, it was the province of the jury to determine what the circumstances actually were, and whether they created a foreseeable hazard. Viewing this evidence most favorably for plaintiff, as this court is constrained to do under established principles, it is clear that plaintiff offered some evidence of defendants' negligence substantiating this essential averment.
Similarly, the record reveals some evidence that plaintiff's son exercised due care. He testified that he was driving approximately thirty to thirty-five miles per hour, which is not per se an excessive speed, and that when he reached the top of the hill and saw the wrecker 100 to 150 feet directly ahead, he immediately applied his brakes, which were in good working order, but that the car slid ahead on a patch of ice. Defendants admit that the brakes were applied, but assert that plaintiff's son had been driving approximately fifty miles per hour. It could not be concluded that all reasonable minds would agree that the conduct of plaintiff's son showed a ...