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Santiemmo v. Days Transfer

APRIL 3, 1956.

SAM SANTIEMMO, APPELLEE,

v.

DAYS TRANSFER, INC., APPELLANT.



Appeal from the Circuit Court of Cook county; the Hon. THOMAS E. KLUCZYNSKI, Judge, presiding. Affirmed upon filing remittitur; otherwise reversed and remanded.

PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This appeal was taken from a judgment entered in the Circuit Court of Cook County on a verdict for the plaintiff assessing the plaintiff's damages at the sum of $15,000.

The defendant here contends that the verdict is against the manifest weight of the evidence; that the trial court erred in the introduction and exclusion of evidence; that the argument of plaintiff's counsel to the jury was improper; that the jury was improperly instructed; that the court erred in denying defendant's motions for judgment notwithstanding the verdict and for a new trial; and that the verdict is grossly excessive.

It appears from the evidence that the accident out of which this action arose happened February 2, 1954 between seven and eight o'clock in the evening, on route 112, approximately two miles west of Cambridge Junction in the State of Michigan. The plaintiff was driving his tractor, which was attached to a trailer. He was eastbound, while the defendant, operating a similar tractor and trailer, was westbound. In passing, the vehicles collided.

Route 112 at the place of the accident is a two-way highway, with black top pavement twenty feet, six inches wide. There is room on the paved portion of the road for two lanes of traffic, one eastbound and the other westbound. There is a curve in the highway to the south of the point of the accident and a similar curve to the north. There is a straight roadway between the curves, and at both ends the road curves toward the north. On both sides of the black top pavement there is a shoulder or berm, and on the south side there is a drainage ditch running along the road.

The plaintiff was driving at a speed about forty miles an hour as he approached the scene of the accident. He saw the defendant's truck approaching him about two or three blocks away, and when it was about two blocks away he noticed that the defendant's tractor and trailer were "staggering" — going from one lane to the other, crossing the center line. The plaintiff reduced the speed of his equipment to about twenty miles an hour, pulling his equipment off the highway so that his right wheels were a foot or two off the highway and on the right shoulder. At the time of the impact the left wheels of the defendant's equipment were in the south lane. The left front of defendant's trailer hit the left side of plaintiff's equipment. The plaintiff's tractor was torn loose from its trailer and the trailer was tipped over on the highway.

The plaintiff and a disinterested witness, who testified on behalf of the plaintiff, were the only occurrence witnesses who testified at the trial. Elliott, the disinterested witness, who was driving a car following plaintiff's truck, testified that at the time of the collision the defendant's truck was on the center line or beyond it and that the plaintiff's truck was not near the center line of the road, but was well on its own side.

The defendant strenuously contends that even though it offered no evidence concerning the occurrence, the jury should have disregarded the testimony of the plaintiff and his disinterested witness because of contradictions therein. Defendant also contends that the plaintiff's testimony was contradicted by his pretrial deposition.

When questioned at the trial the plaintiff admitted that he had made the statements in the deposition. These statements indicated a difference of some three or four feet in the position of the truck with reference to the center line of the road. He explained the variance apparently to the satisfaction of the jury. Counsel for the defendant in his opening statement assumed it to be a fact that the unit of the defendant was "staggering on the road," and gave as the reason therefor that the unit had slipped off the edge of the pavement and the driver was bringing it back. He further stated that whether it was an inch one way or the other of the center line would be for the evidence to show, and that the plaintiff either knew or should have known that the truck of the defendant "was in trouble" while he was some distance down the road.

The defendant also complains that the testimony of the disinterested witness and the plaintiff with reference to the position of the truck is not in accord. The variances complained of in the testimony are no more than appear in an ordinary lawsuit. Witnesses are stating their memory of the occurrence. When the testimony of all witnesses is exactly alike it awakens suspicion. When the testimony concerns distances it cannot be measured by a mathematical formula. It is the duty of the jury to consider the evidence as a whole. Differences between witnesses to a much greater degree than those here apparent are daily reconciled in lawsuits by the trier of the fact, whether judge or jury.

[1-3] As we have indicated, no evidence with reference to the occurrence was offered by the defendant. Under such circumstances, if there was any credible evidence in the record to prove the essential elements of the plaintiff's case, the trial court could not set aside the verdict as against the weight of the evidence. Where defendant has failed to offer any evidence, plaintiff is entitled to all favorable inferences legitimately arising from the evidence, and a verdict for the plaintiff should remain undisturbed unless it clearly appears that it was the result of passion or prejudice or contrary to the clear weight of the evidence. Moffitt v. O.L.D. Forwarding Co., 331 Ill. App. 278; Kelley v. United Benefit Life Ins. Co., 275 Ill. App. 112. A verdict will not be disturbed as contrary to the evidence, where it fairly tends to prove the allegations of the complaint, and the defendants have not taken the stand and testified in contradiction of the facts prima facie established by the plaintiff's proof. Earp v. Lilly, 120 Ill. App. 123. In the case of Graham & Morton Transp. Co. v. Owens, 165 Ill. App. 100, the court said:

"As to the merits of the case at bar, six witnesses testified in behalf of appellant, but appellee did not submit any testimony. After a careful consideration of the testimony, . . . we think it fully justifies a finding against the defendant. . . .

"We cannot doubt from the testimony in the record that Owens, appellee, knew that the sugar he was getting from Fonger, was stolen, and while it is true, that the evidence in behalf of appellant is somewhat lacking in that definiteness which might be desired, yet, as the defendant produced no testimony, we are bound by the testimony offered in behalf of the appellant, together with all reasonable inferences to be drawn therefrom."

The evidence in behalf of the plaintiff in the case before us was sufficient to establish liability. Neither the trial court nor a reviewing court can properly substitute its judgment for that of the jury merely because it ...


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