Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.
This is an appeal from a judgment rendered upon the verdict of a jury which assessed plaintiff's damages in the sum of $60,000.00. The action was for personal injuries sustained by plaintiff when the tractor-trailer of the defendant came in contact with a bicycle on which plaintiff was riding. The accident occurred on June 30, 1947, a short distance south of the intersection of Cottage Grove Avenue, which extends in a northerly and southerly direction, and East Oakwood Boulevard, which extends in an easterly and westerly direction, in the city of Chicago. On Cottage Grove Avenue are two street car tracks, the easterly for northbound and the westerly for southbound street car traffic. Plaintiff, a fourteen year old boy, was riding his bicycle in a northerly direction allegedly in the northbound car track, following a street car moving in the same direction. A tractor and trailer of the defendant was being driven south on Cottage Grove Avenue by Fred Roempler, an employe of the defendant.
The contested issues in the main are (1) whether the District Court erred in denying defendant's motions for a directed verdict and for judgment notwithstanding such verdict, (2) whether the court erred in the giving and refusing of instructions, (3) whether the verdict of the jury was grossly excessive, and (4) whether the argument to the jury made by plaintiff's attorney was inflammatory and prejudicial to the defendant.
We shall first consider defendant's contention, urgently pressed upon us, that the court erred in refusing its motion for a directed verdict. We note in the beginning without extended discussion the contrariety of view advanced by the respective parties as to our function on review. Plaintiff, relying upon Illinois cases, contends that the question is whether there is any evidence fairly tending to prove the allegations of the complaint when considered in the light most favorable to plaintiff. On the other hand, defendant contends that the rule is different in the Federal court and that the question is whether there is substantial evidence to support the verdict. That this has often been held to be the rule is shown by many cases. Foster v. Denny Motor Transfer Co., 7 Cir., 100 F.2d 658, 659; Butte Copper & Zinc Co. et al. v. Amerman et al., 9 Cir., 157 F.2d 457, 458; Harnik v. Lilley, 8 Cir., 167 F.2d 159, 160; Baltimore & O. Ry. Co. v. Postum, D.C., 177 F.2d 53, 54. And see Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720. While the substantial evidence rule, so far as we are aware, has not been expressly repudiated by the Supreme Court, yet the language employed in recent cases makes it of doubtful meaning. For instance, in Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S. Ct. 413, 418, 93 L. Ed. 497, the court stated: "* * * And peremptory instructions should not be given in negligence cases 'where the facts are in dispute, and the evidence in relation to them is that from which fairminded men may draw different inferences.' Washington & G.R. Co. v. McDade, 135 U.S. 554, 572, 10 S. Ct. 1044, 1049, 34 L. Ed. 235. Such has ever since been the established rule for trial and appellate courts. See Tiller v. Atlantic C.L.R. Co., 318 U.S. 54, 67, 68, 63 S. Ct., 444, 451, 452, 87 L. Ed. 610." See also Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 32, 64 S. Ct. 409, 88 L. Ed. 520, and Tiller, Executor v. Atlantic Coast Line Ry. Co., 318 U.S. 54, 67, 63 S. Ct. 444, 87 L. Ed. 610. True, as defendant observes, these were cases under the Federal Employers Liability Act, but even so, the issue, as here, was whether there was sufficient proof of negligence to take the case to the jury. And it is evident that the Supreme Court in recent times has evidenced a strong inclination against directed verdicts in negligence cases.
We have a feeling that the varying phraseology used in stating the test to be employed by a reviewing court in passing upon the action of a trial court in allowing or denying a motion for a directed verdict is a play upon words, and that the apparent conflict is more fanciful than real. All parties agree that it is particularly the province of the jury to weigh the evidence and determine the credibility of witnesses. And we think it is sufficient on review if there is evidence which, if given credence by the jury, supports the charge of negligence.
The general position of the respective parties appears to be fairly stated in plaintiff's brief as follows:
"The plaintiff's theory as outlined in his opening statement was that while plaintiff was on his bicycle in the north bound street car tracks of Cottage Grove Avenue, just south of Oakwood Boulevard, the defendant's tractor and trailer unit was moving south in Cottage Grove Avenue, with part of it over the center line, and struck plaintiff while he was in the east half of the street.
"The defendant's theory as found in its counsel's opening statement, is that plaintiff attempted to stop for a standing north bound street car at Oakwood Boulevard, and just as defendant's truck passed the rear of the street car, plaintiff turned his bicycle in to the unit at a point opposite where the driver sits in the truck."
It was on these respective theories that the case was tried, and it is substantially on the same theories that the case is argued here.
While the parties go into much detail in narrating the facts and circumstances in proof designed to support their respective positions, we think a comparatively brief statement will suffice. Cottage Grove Avenue just south of East Oakwood Boulevard, at the point where the accident occurred, is 40 feet in width, on which there are located two street car tracks, the easterly track for northbound traffic and the westerly track for southbound.The gauge of each track, which is the distance inside the rails, is 4'8 1/2", and the distance from the inner edge of the inner southbound rail and the inner edge of the inner northbound rail is 5 feet. The central portion of the street is paved with brick to a width of 16 1/2 feet, and included in this brick pavement are both of the street car tracks. The pavement on each side between the brick portion and the curb is composed of wooden blocks.
Defendant's tractor was 17'6" and the trailer attached to the tractor was 18 feet in length. The tractor had single wheels at its front end and dual wheels at its rear. There were also dual wheels on the rear of the trailer. The width of the tractor was 7'6", while that of the body of the trailer was 8 feet. The width of the dual wheels of the tractor was 7'1 1/2", while that of the trailer was 7'3". The center line of Cottage Grove Avenue was 2'3 1/2" east of the east edge of the east rail of the southbound car tracks. We are treated to a great display in figures and mathematics as to measurements and distances, the precise accuracy of which we regard as relatively unimportant. While there may be some discrepancy in the figures we have given of an inch or two here and there, we think they are substantially correct and sufficient for our purpose.
On the day in question, plaintiff had been on an errand and was on his way home, riding his bicycle north on Cottage Grove. As he approached Oakwood Boulevard there was a street car standing in front of him, and people were getting on and off. He testified that he stopped about 10 or 15 feet to its rear, between the two rails of the northbound car track. He remained stopped for three or four seconds, when the street car started to move. He stated that he was hit by a truck going south, that from the time he stopped until he was struck he remained between the northbound rails, that at the time the accident occurred the street car had gone, that he did not know what part of the truck hit him, that he did not drive his bicycle into the side of the truck, and that after he was struck he was lying in the middle of the northbound street car track. Plaintiff also stated that there were cars parked along the east curb.
On cross-examination, plaintiff testified that he did not see defendant's truck, that he was watching what was in front, that when he reached the street car it was still standing but that it soon started up rapidly and pulled away from him. He stated further that when he stopped his bicycle he put his right foot down in the middle of the northbound track. At another ...