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Borst v. Langsdale

DECEMBER 1, 1955.

LUCILLE BORST AND MABEL WRIGHT, PLAINTIFFS-APPELLEES,

v.

RAY LANGSDALE, DEFENDANT-APPELLANT, AND ROY SPEARS, CO-DEFENDANT-SEPARATE APPELLANT.



Appeal from the Circuit Court of Rock Island county; the Hon. LEONARD TELLEEN, Judge, presiding. Affirmed. JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.

Plaintiffs brought this action to recover damages for personal injuries which they received when the motor vehicle in which they were riding as guests was struck by two other vehicles, one driven by the defendant, Ray Langsdale, and the other driven by the defendant, Roy Spears.

The case was tried by a jury, which found both defendants guilty and awarded damages of $1,500 to Mabel Wright and $5,000 to Lucille Borst. The trial court denied motions for new trial filed by both defendants and entered judgments on the verdict.

The complaint alleged that plaintiffs were riding as guests in a motor vehicle being driven in a Northerly direction on Route 80 near Cordova. It charged that the defendant, Langsdale, was operating a car in a Southerly direction at said time at a speed greater than was reasonable and proper, contrary to Sec. 146, Ch. 95 1/2, Ill. Rev. Stat. 1953 [Jones Ill. Stats. Ann. 85.178]; that he failed to drive in the right half of the roadway, contrary to Sec. 151 [Jones Ill. Stats. Ann. 85.183] of said chapter; that he lost control of his car and collided with the vehicle in which plaintiffs were riding, thereby causing them to receive various personal injuries. The complaint further charged that defendant, Spears, was driving a vehicle in a Northerly direction and collided with the rear of the vehicle in which plaintiffs were riding because said Spears was driving his vehicle while under the influence of intoxicating liquor, contrary to Sec. 144 [Jones Ill. Stats. Ann. 85.176] of said chapter.

Defendant Langsdale's theory is that the Trial Court should have granted his motion for new trial because the verdict was against the manifest weight of the evidence and because the Trial Court erred in allowing certain instructions offered in behalf of the plaintiffs and in behalf of co-defendant Spears, and in refusing certain instructions offered by defendant Langsdale.

Defendant Spears theory is that the Trial Court should have granted his motion for a new trial because the verdict against him was against the manifest weight of the evidence, and that the direct and proximate cause in this case was the negligence of the co-defendant Langsdale; that the Court erred in allowing certain instructions offered in behalf of said defendant Langsdale, to the prejudice of this defendant Spears.

It appears from the evidence that plaintiff Lucille Borst and her mother, Mabel Wright, the other plaintiff, were riding as guests in a Dodge automobile, being driven by Matthew Jacobson, which was the first of a line of cars traveling in a Northerly direction on Illinois State Route 80 near the Village of Cordova, in Rock Island County. The defendant, Langsdale, was operating a Buick automobile in a Southerly direction approaching the car in which the plaintiffs were riding. The defendant, Spears, was driving a Mercury automobile in a Northerly direction and had passed several of the cars following the Jacobson car and was approaching the Jacobson car from the rear at a high rate of speed. As the defendant Spears passed the car immediately behind the Jacobson car, the defendant Langsdale drove his car off on to the shoulder on the West side of the road. The car spun out of control, and in defendant Langsdale's own words, "whipped across the highway" into the path of the Jacobson car where it collided with the Jacobson car in the North bound or plaintiffs' lane of traffic. The defendant Spears, at almost the same time, collided with the Jacobson car from the rear. The plaintiffs were injured in the resultant collision.

Defendant Langsdale testified that he had come around a curve before going into the straight stretch; that he was driving between 50 and 60 miles an hour "I imagine"; that after he came around the curve he saw a string of cars coming up the highway from the South, and that as he neared them he could see a car whipping out from this line of cars and it seemed to be coming up his side of the highway; that he didn't know what was going to happen and he took to the shoulder.

As to the defendant Spears, it is undisputed that he had been drinking in the Duck Inn tavern prior to the collision. Four disinterested witnesses testified that just before Spears crashed his vehicle into the rear of the vehicle in which plaintiffs were riding he was weaving in and out of traffic, going on and off the highway, at a speed fixed by some of the witnesses as being in excess of 80 miles per hour. After the accident, Spears was arrested for drunken driving; an intoximeter test showed that he was intoxicated; and he entered a plea of guilty to a charge of driving while under the influence of intoxicating liquor in the County Court of Rock Island County.

[1-3] The evidence in this case clearly presented a question for the jury as to the negligence of both of these defendants. The jurors were not required to determine whether one defendant may or may not have been more at fault than the other. The jurors by their verdict found that both defendants were negligent and that both contributed to cause the collision. A court of review will not interfere with the verdict of a jury unless the jury's verdict is contrary to the manifest weight of the evidence. Seeden v. Kolarik, 350 Ill. App. 238. In that case, the Court at pp. 243-244 said:

"The questions of negligence and contributory negligence are pre-eminently questions of fact for the jury to determine, and as the jury's verdict is supported by substantial evidence, even though there be substantial evidence to the contrary, the reviewing court is bound by the verdict of the jury. To hold otherwise the court would be invading the prerogative of the jury. (citing cases) The jury is in a better position to determine the credibility of the witnesses and the weight to be given their testimony than the reviewing court. They have an opportunity to observe the demeanor of the witnesses while testifying and their manner of testifying, and from this and the testimony, they determine where the truth lies."

The jury saw and heard the witnesses. Where disputed questions of fact are presented to a jury and the jury passes upon them, unless palpably erroneous, the finding of fact will not be disturbed by the reviewing court. Griggas v. Clauson, 6 Ill. App.2d 412; People v. Hanisch, 361 Ill. 465; Krug v. Armour & Co., 335 Ill. App. 222; Becherer v. Belleville-St. Louis Coach Co., 322 Ill. App. 37; Rembke v. Bieser, 289 Ill. App. 136; Leahy v. Morris, 289 Ill. App. 99. To be against the "manifest weight of the evidence" requires that an opposite conclusion be clearly evident. Griggas v. Clauson, supra at p. 419; Olin Industries, Inc. v. Wuellner, 1 Ill. App.2d 267; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147.

We have examined the record and do not find that the verdict is manifestly against the weight of the testimony. Under these circumstances we have no right to set aside the jury's finding.

The only other points raised on this appeal deal with objections by defendant Langsdale to certain matters in the instructions. The Trial Judge was literally swamped by the tender of over sixty instructions in this case: the two plaintiffs having tendered fifteen, of which ten were given; the defendant Spears having tendered seventeen, of which sixteen were given; and counsel for Langsdale, who is now complaining about the instructions, tendered thirty instructions, of which seventeen were given.

The defendant Langsdale contends that it was error for the court to give Instruction No. 4 for the ...


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