Appeal by plaintiff from the Circuit Court of Tazewell county;
the Hon. JOHN T. CULBERTSON, JR., Judge, presiding. Heard in this
court at the October term, 1954. Affirmed. Opinion filed October
19, 1954. Rehearing denied November 30, 1954. Released for
publication November 30, 1954.
MR. PRESIDING JUSTICE CARROLL DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 30, 1954.
This action was brought in the circuit court of Tazewell county to recover damages for the death of plaintiff's intestate alleged to have been occasioned by the negligence of the defendants in the operation of a motor vehicle, referred to in the complaint as a tractor-trailer transport.
The jury returned a verdict for the defendants. The trial court overruled plaintiff's motion for a new trial and entered judgment on the verdict. From such judgment plaintiff appeals.
The accident occurred at about 6:30 a.m. on January 9, 1952 in the Village of Tremont, on State Highway Route 9, which is a two-lane, hard-surfaced highway. Plaintiff's decedent, driving a Dodge sedan in which 5 other persons were riding, was proceeding west. The defendant, Harold E. Law, driving a gasoline transport truck consisting of a tractor and 2 trailers, was proceeding east. As the highway comes into Tremont from the west there is a northerly curve. At a point approximately 300 feet east of said curve the decedent's automobile came into contact with the left-rear corner of the second trailer of the transport. Plaintiff's decedent was killed in the collision.
It is plaintiff's contention that the verdict of the jury is against the manifest weight of the evidence; that the trial court erred in its rulings on the admissibility of evidence and in instructing the jury; and that plaintiff's motion for a new trial should have been granted.
If as plaintiff argues, the verdict was against the preponderance of the evidence, it then became the duty of the trial court to set it aside and grant a new trial. Likewise, if such verdict is manifestly against the weight of the evidence, then this court should reverse and remand. Read v. Friel, 327 Ill. App. 532; Stevenson v. Byrne, 3 Ill. App.2d 43.
Determination as to whether the trial court erred in denying the motion for a new trial must be made from a consideration of the record. In this case the area of conflicting evidence may be narrowed to an interval between the time when the two vehicles met in passing and the actual contact between the left front of decedent's car and the left-rear corner of defendants' second trailer.
There appears to be no serious disagreement among the witnesses as to the speed of the two vehicles, nor does it appear from their testimony that the accident resulted from the excessive speed of either. The witnesses also appear to have agreed that there was ice on the pavement where the collision occurred. There also appears to be no dispute over the fact that there was no contact between the two vehicles until the left front of decedent's car struck the left-rear corner of the transport. Also undisputed is the fact that the collision occurred at about 6:30 a.m. and that the lights on both vehicles were burning.
The testimony of the witnesses as to the position of the vehicles on the highway at the time of the collision with reference to the center line thereof appears to be in sharp dispute. The defendant Law testified that neither prior to or at the time of the accident was his vehicle on the left or decedent's side of the black or center line of the highway, and that as the transport proceeded around the curve no part of the transport swayed to the left or north of the black line. The witness Clyde Dively, a passenger in decedent's car, testified that he had a clear view of the approaching truck; that it was overriding the center line of the highway about 1 1/2 feet as it came around the curve; that he said nothing to anyone in the car with reference to the manner in which the transport was being driven; that he felt no sudden movement of decedent's car prior to the collision; that the decedent's car did not skid; that the car collided with the left-rear wheel of the second trailer of the transport; and that the car spun and came to a rest on the north side of the pavement, facing southwest.
Wilhelmina Ummel, a passenger in decedent's car, testified she did not see the transport until the decedent's car had passed the front thereof. Her testimony threw no light on the question as to the movements of the transport on the highway prior to the actual collision. The witness, Jeannie Morris, a court reporter, testified that two days after the occurrence she took down questions asked of the witnesses Dively and Ummel by a Mr. O'Hara, who was investigating the accident, and their answers to said questions; that the witness Dively in answer to a question put to him by O'Hara, stated he was not awake when the accident happened; that he woke up after the collision; that witness Ummel, in answer to questions asked of her by O'Hara, stated she did not know what made the cars strike; and that Dively, who was sitting beside her in decedent's car, was asleep at the time of the accident.
Henry Steghorst, plaintiff's witness, and defendants' witness, Arthur O. Stein, both testified they saw the truck on the highway prior to the collision. Steghorst testified he followed the truck from a point several miles west of Tremont; that it swerved back and forth across the center line of the highway several times; that the truck was thus swerving when it was within 100 feet of decedent's car; that decedent's car remained on the pavement at all times up to the actual collision; and that there was nothing to obstruct decedent's view of the oncoming truck. The witness Stein testified he drove behind the truck on Route 9 at a distance of from 600 to 800 feet, but did not see the truck cross the black line.
There was testimony by a state police officer and a deputy sheriff as to the location of the vehicles after the accident, and also as to marks on the pavement. The state police officer also testified that he interviewed the witness Ummel at the Pekin Hospital on the day of the accident; that in answer to his question as to what happened, the witness Ummel said that the driver of the car in which she was riding became confused.
H.A. Fleener, a witness for the plaintiff, testified defendant Law told him at the scene of the accident "that he got to skidding." Law in his ...