Appeal by petitioner from the Circuit Court of DeKalb county;
the Hon. CASSIUS POUST, Judge, presiding. Heard in this court at
the February term, 1953. Order affirmed in part and reversed in
part and cause remanded. Opinion filed April 20, 1953. Released
for publication May 12, 1953.
MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.
Arthur Ashton, plaintiff and respondent herein, filed his suit in the circuit court of DeKalb county, Illinois against Margaret Sweeney and Frank Sweeney, defendants and respondents herein, and against John Stevens, defendant and petitioner herein, for personal injuries arising out of an automobile accident.
The complaint consists of five counts.
Count one charges John Stevens with negligence in the operation of his automobile causing the plaintiff's injuries.
Count two charges the defendants Sweeney with negligence which caused the plaintiff's injuries arising out of the operation of their automobile.
Count three charges the Sweeneys with willful and wanton misconduct.
Count four charges all the defendants with negligence that caused the plaintiff's injuries.
Count five charges all the defendants with willful and wanton misconduct.
The defendants by their answer denied all acts of negligence and willful and wanton misconduct. The issues were submitted to a jury and they returned two verdicts. One verdict found the defendants, Margaret and Frank Sweeney, guilty, and assessed plaintiff's damages at $48,000. The other verdict found the defendant John Stevens not guilty. The defendants Sweeney filed their motion for a new trial. The motion contained the usual assignments of error. Later they filed an amended motion for a new trial based on newly discovered evidence of Beatrice Wensland, who was an eyewitness to the accident. The facts disclosed in her affidavit in support of the motion corroborate the testimony of all the defendants that they are not liable for the plaintiff's injuries. The plaintiff filed no motion for a new trial. The court awarded the defendants, Margaret and Frank Sweeney, a new trial, and in the same order awarded a new trial as to the defendant, John Stevens. The trial judge at the time he rendered his decision granting a new trial stated:
"In the case of Ashton v. Stevens, No. 51-48; this matter stands before the Court on a motion for a new trial and other motions argued on July 28; the Court has spent a great deal of time carefully studying the record and the authorities cited; this case is extremely close on the question of wanton and willful conduct, and the Court feels there should be a re-trial of same, especially in view of the unusually large verdict and the newly discovered witness. Accordingly, the motion for a new trial is granted and the other motions denied."
Defendant Stevens has appealed from the order granting a new trial as against him. The defendants Sweeney contend that the trial court properly granted a new trial as to all defendants. The plaintiff Ashton contends that if a new trial should be granted, it should be granted as to all defendants. He also contends by cross-error that the trial court erred in setting aside the verdict as against the Sweeneys, that the jury's verdict be permitted to stand, and that the cause be remanded for further proceedings in due course.
The verdict entered against the Sweeneys being general in form must be sustained by the counts charging willful and wanton misconduct. (Trumbo v. Chicago, B. & Q.R. Co., 389 Ill. 213; Countryman v. Sullivan, 344 Ill. App. 371.)
It is conceded by all counsel that the trial court may, after a verdict, grant a new trial to one or more of the defendants as justice may require. (Illinois C.R. Co. v. Foulks, 191 Ill. 57; Pecararo v. Halberg, 246 Ill. 95.) The first question to be answered is, did the trial judge abuse his sound judicial discretion in granting a new trial as against the defendant John Stevens. This requires an analysis of the testimony in all its aspects most unfavorable to the defendant Stevens.
The uncontroverted facts surrounding the accident are as follows: on June 5, 1950, at about 2:00 p.m., the plaintiff was working as the east end flagman for the State of Illinois during repairs being made on Illinois State Highway 34 near Somonauk, Illinois. The highway at that place extends east and west and is twenty feet wide with two traffic lanes. The terrain is flat and the road straight. The day was clear and warm. The highway maintenance crew were engaged in repairing the eastbound traffic lane by filling in cracks with tar and sand. The equipment used consisted of two trucks headed east and a tar kettle on wheels. The lead truck pulled the tar kettle, and the rear truck was filled with sand. The distance between the trucks varied from 100 to 200 feet. There were several men working on the repairs. These men and the flagmen were working under the direction of William Campbell, foreman. East and west of the repair zone two flagmen were stationed to protect the workmen and the travelling public. The usual warning signs were in place some distance east and west of the flagmen. The defendant Stevens was driving east. He stopped his car on flag by the west end flagman. He was permitted to proceed in the westbound traffic lane around the repair zone and after he had passed the repair zone, he proceeded diagonally into the eastbound traffic lane. Ashton attempted to flag him down and they had some words as he passed him. He proceeded some distance down the highway, then backed his car up and stopped in the center of the eastbound traffic lane, a short distance in front of the lead truck which was standing still. He then had some conversation with Ashton and Campbell who were then standing in or near the center of the highway. Stevens, after the conversation, proceeded east and at about that time Ashton was struck by the Sweeney car also proceeding east, somewhere in the westbound traffic lane. As a result Ashton received the injuries complained of. Stevens stopped his car after seeing the accident in his rear-view mirror, and went into the next town to procure medical assistance. The Sweeney car had stopped after being flagged down by the west end flagman and had proceeded at the flagman's direction around the repair zone. Their car was being driven by Margaret Sweeney, wife of Frank Sweeney, who was also in the front seat of the car, at a speed not exceeding twenty miles an hour. The Sweeney car struck the plaintiff somewhere on the westbound traffic lane or near or off the north edge of the highway. Where and how he was struck is a highly controverted question of fact, the testimony being wholly irreconcilable. As a result of the accident Ashton received a comminuted fracture of both bones of his right leg and various minor injuries due to lacerations on his body. The fracture of the tibia did not heal. He was placed in a cast and later used crutches after the cast was removed. He was still under medical treatment at the time of the trial and there had been no healing of the tibia fracture at that time. His medical expenses amounted to approximately $1800. It appeared that a bone-graft operation would still be necessary and would probably be successful to heal the tibia fracture. This would cost $500 plus hospital expenses. He has not been able to work for two years. At the time of the accident he was earning $175 per month.
The testimony on the material issue as to who was at fault is highly conflicting. It is impractical to state all the relevant testimony in detail as disclosed by the abstract, but the substance of it follows.
William Edward Campbell testified that after Stevens backed up his car, he and Ashton were standing alongside the car, near the center of the highway; that he was conversing with Stevens; that neither he nor Stevens was angry; that he gave Stevens his name and address; that he did not see the Sweeney car approaching; that Stevens started off rapidly, his wheels spinning; that he left burnt rubber marks on the pavement; that at the time Stevens started away, Ashton took one step back; that he heard a thud and could see that Ashton had been hit by another car "that was back behind us"; that Stevens stopped his car about 500 feet ahead, backed up, and said he would stop in town and call a doctor; that Stevens at no time was out of his car.
Margaret Sweeney testified that she did not see the plaintiff until he started to back up north across the center line of the pavement; that as she observed Ashton she blew her horn and her husband "hollered at him, but he kept backing up further north into the west traffic lane"; that when she first saw him, he was twenty or forty feet away; that she then swerved her car to the left; that she was in first speed. She was not too definite about the distances, as it all happened too rapidly, but she thought she applied the brakes when she first saw Ashton; that after the collision her car did not proceed over half its length; that when she stopped her car, it was partly ...