Appeal by plaintiff from the Circuit Court of Macoupin county;
the Hon. L.E. WILHITE, Judge, presiding. Heard in this court at
the October term, 1950. Reversed and remanded. Opinion filed
November 2, 1950. Released for publication November 28, 1950.
MR. JUSTICE DADY DELIVERED THE OPINION OF THE COURT.
This personal injury suit was brought by the plaintiff appellant, Albert Palmer, a minor, by his father and next friend, against the appellee, LeRoy Loveless, for personal injuries received by plaintiff on May 15, 1946, when struck by an automobile driven by defendant's agent, Leo Fellin.
The charges of negligence were that Fellin, as such agent (1) drove the automobile at a high and dangerous rate of speed and so carelessly and negligently that the automobile ran against and over plaintiff, and, (2) drove said automobile at a high and dangerous rate of speed in excess of twenty miles per hour in violation of sec. 49, par. 146 of the Motor Vehicle Act [Ill. Rev. Stat. 1949, ch. 95 1/2, par. 146; Jones Ill. Stats. Ann. 85.178], and, (3) drove said automobile at about 7:30 p.m. after sunset without lights, in violation of sec. 103, par. 200 of such Act [Ill. Rev. Stat. 1949, ch. 95 1/2, par. 200; Jones Ill. Stats. Ann. 85.232], and in violation of his duty to have two lighted lamps on such automobile.
The trial court reserved its ruling on a motion made by the defendant at the conclusion of all the evidence to direct the jury to return a verdict of not guilty.
Thereafter and on October 25, 1949, the jury returned a verdict of $3,500 for plaintiff.
The report of the trial proceedings states, "Motion for directed verdict at close of all evidence allowed." No order was entered on such motion.
The procedure in the trial court on the entry and disposition of motions is somewhat confusing. The record, so far as is material, shows the following: On October 31, 1949, defendant filed his written motion for a judgment in his favor notwithstanding the verdict. On November 15, 1949, the defendant filed his written motion for a new trial. On November 19, 1949, an order was entered allowing defendant's said motion for a new trial. On November 22, 1949, an order was entered allowing defendant's motion for judgment notwithstanding the verdict. Counsel for defendant states in his brief that the motions for judgment notwithstanding the verdict and for a new trial were both presented to the court on November 19, 1949, "and were allowed." The report of the trial proceedings states that "at a later date," (date not shown) defendant entered his motion for judgment notwithstanding the verdict and then moved the court to set aside the verdict and grant a new trial, and that thereupon the court sustained such motion for a judgment notwithstanding the verdict and sustained the motion for a new trial. The notice of appeal is also informal or irregular in that it states that the appeal is from the "order entered . . . on November 19, 1949, wherein it was ordered . . . that the motion of defendant for a judgment in his favor be and was thereby granted . . . notwithstanding the verdict." Such notice then prays that the order of November 19 be reversed and the cause remanded with instructions to enter judgment for plaintiff on the verdict or that such other order or orders be entered as to this court may seem just in the premises.
Counsel for defendant in his brief says the orders of November 15 and November 19 were actually entered on the same day.
Plaintiff contends that because the defendant failed to file his motion for a new trial simultaneously with his motion for judgment n.o.v. "as required by Supreme Court Rule 22 [Ill. Rev. Stat. 1949, ch. 110, par. 259.22; Jones Ill. Stats. Ann. 105.22]," and because the trial court did not pass upon and decide in the same manner these motions as required by such rule, the right to file the motion for a new trial was lost. Plaintiff concludes by asking that our court enter judgment for plaintiff on the verdict.
In support of such contention the plaintiff cites Todd v. S.S. Kresge Co., 384 Ill. 524. In the Kresge case the defendant did not make any motion for a new trial. In the instant case, as already shown, the defendant's motion for a new trial was filed after his motion for judgment n.o.v. was filed, but was filed while such motion for judgment was pending and undisposed of. In the Kresge case the Supreme Court was not confronted with the problem of whether if a party inadvertently files his motion for judgment, without accompanying it with an alternative motion for a new trial, he can later in the sound discretion of the trial court, properly file and present his motion for a new trial before the motion for judgment is disposed of. In the instant case the plaintiff made no motion to strike either of defendants' motions. If such a motion had been made while the two motions of defendant were pending and undisposed of, we believe the trial court could properly have allowed the defendant's motions to be withdrawn and a proper combined alternative motion to be filed by defendant.
If we were to hold that plaintiff's contention is correct, then we also might be required to hold that plaintiff's notice of appeal is materially defective, because it states that the plaintiff appealed (only) from the order of November 19, the record showing that the order of November 19 only disposed of the motion for a new trial.
Notwithstanding such irregularities, we are considering and passing upon the cause on the merits.
As the case is presented, we consider that the only question we are required to pass on is whether the trial court erred in entering judgment for the defendant notwithstanding the verdict.
[1-6] The question presented by a motion for a directed verdict, or for a judgment non obstante veredicto, is whether there is any evidence fairly tending to prove the cause of action or the fact affirmed. The court, on such motion, does not weigh the evidence nor consider its preponderance. (Knudson v. Knudson, 382 Ill. 492, 494.) Whether a plaintiff was guilty of contributory negligence is ordinarily a question of fact for the jury to decide. (Ziraldo v. W.J. Lynch Co., 365 Ill. 197.) Negligence does not become a question of law alone unless the acts constituting it are of such a character that all reasonable men would concur in pronouncing them so. (Berg v. New York Cent. R. Co., 391 Ill. 52, 63.) A motion to direct a verdict for the defendant and a motion by the defendant for judgment notwithstanding the verdict preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found ...