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Green v. Keenan

APRIL 27, 1956.




Appeal from the Circuit Court of Kane county; the Hon. HARRY C. DANIELS, Judge, presiding. Affirmed.


Rehearing denied May 21, 1956.

This action was brought by Polly D. Green, individually, and as administratrix of the estate of her deceased husband, Paul H. Green, to recover damages for personal injuries and wrongful death occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, John Keenan, in driving his automobile.

On the evening of March 19, 1952, the plaintiff and her husband drove to the farm of John Roberg situated near the Village of North Aurora, Illinois, to feed some riding horses which belonged to the husband. The husband was driving his 1941 Willys Americar, and the plaintiff was riding with him as a passenger. After the horses were fed, the Greens got into their car to return to Aurora and Paul H. Green found that he could not get the car started. He made some repairs to the engine under a light in Roberg's yard, and when he was still unsuccessful in getting it started, he asked Roberg to push him with Roberg's truck. Roberg pushed him out of his yard onto a gravel road, then onto a state highway called Butterfield Road. The car started then and ran a short distance and stopped. Roberg then pushed them to the intersection of Butterfield Road and State Highway 25 where they turned south on Route 25. Two or three attempts were made to fix the engine and both vehicles were stopped off the highway during these attempts. Roberg then told the Greens that he would push them into Aurora and they proceeded in a southerly direction on Route 25. At a point in the highway where there is a knoll and a decline from north to south, the Greens rolled on ahead of the Roberg truck. As Roberg, while still moving, was coming up to again make contact with the Green car which had slowed down upon reaching level ground, the defendant who was driving a new 1952 Ford automobile south on the highway collided with the rear of the Roberg truck with such force that the defendant's car was completely smashed; and the Roberg truck was rammed into the rear of the Green car which in turn was forced off the highway into a tree 150 feet from the point of impact. Paul H. Green was thrown out of the car into the middle of the pavement and suffered injuries from which he later died and his wife Polly D. Green sustained various injuries on her own account.

The evidence showed that there were other cars approaching from the opposite direction immediately prior to the collision but that they had already met the Green car and were some 500 feet north of the point of impact and that the headlights and taillights on both the Green car and the Roberg truck were on and in proper working condition at the time. The evidence further disclosed that defendant Keenan had been drinking intoxicating liquor prior to the accident and that he was operating his car at a high rate of speed. He stated to one of the police officers of Aurora at the hospital, "Driving and drinking don't mix." The force of the impact itself showed that he was traveling at a high speed.

The case was tried before a jury and at the close of the evidence for plaintiffs, defendant moved for a directed verdict. Again at the close of all the evidence, defendant made like and similar motions which were denied. Whereupon the issues were submitted to the jury with instructions and defendant's three special interrogatories. The jury retired to consider their verdict at 5:43 p.m. on the 25th of February, 1955; by agreement of counsel and by order of court, it was agreed that the jury should sign, seal and deliver their verdict to the officer of the court and separate, and that the verdict should be presented to the court, opened and read on Monday, February 28, 1955, and counsel in their agreement further agreed to waive polling the jury; on said February 28, the verdict was opened and read, at which time a verdict in favor of the administratrix in the amount of $16,000.00 was returned, and a verdict for Polly D. Green, individually, in the amount of $650.00 was returned; a further verdict was returned finding the administratrix not guilty on defendant's counterclaim; the jury answered one special interrogatory finding the defendant guilty of wilful and wanton misconduct; the two other interrogatories were not answered. They were:

"Was the plaintiff, Polly D. Green, guilty of contributory, wilful and wanton misconduct at the time and place of the occurrence in question?

"Yes ____ No ____

"Was the plaintiff's decedent, Paul H. Green, guilty of contributory, wilful and wanton misconduct at the time and place of the occurrence in question?

"Yes ____ No ____"

After reading the verdicts, the court entered judgment on same. Counsel for defendant was present in open court. No objection was made to the verdict or to the answer to the interrogatory, or the failure of the jury to answer the two unanswered interrogatories; no motion was made that they were insufficient, and no motion was made to send the jury back to complete their verdict or to answer the unanswered interrogatories. Defendant's first objection to the failure of the jury to answer the two interrogatories was in his motion for a new trial filed on March 8, 1955. The defendant moved the court for a judgment notwithstanding the verdict and for a new trial which said motions were denied by the court and judgment entered on the verdict of the jury. From said judgment, the defendant has filed this appeal.

The defendant's theory is that, as a matter of law, he was not guilty of negligence or of wilful and wanton misconduct as plaintiffs allege; that further, the plaintiffs were guilty of contributory negligence and wilful and wanton misconduct as a matter of law. He further contends that the trial judge should have directed a verdict in his favor; that in any event the trial judge erred in certain of his rulings in the trial of this cause; that he erred in giving certain instructions offered by the plaintiffs and modifying other instructions offered by the defendant, and denying still other instructions offered by defendant; and that he should have granted the defendant's motion for a new trial.

The plaintiffs' theory of the case is that defendant was guilty of both negligence and wilful and wanton misconduct and that there was ample evidence to sustain the jury's findings in support of the verdict.

[1-4] The evidence in this case clearly presented a question for the jury as to the negligence and the wilful and wanton misconduct of the defendant. In answer to a special interrogatory the jury found that the defendant was guilty of wilful and wanton misconduct. On a motion for a directed verdict the court does not weigh the evidence. The court may properly consider only the evidence and inferences most favorable to the plaintiff; and it is only when there is no evidence tending to prove plaintiff's case that the court can grant either a motion for directed verdict or judgment notwithstanding the verdict. Lindroth v. Walgreen Co., 407 Ill. 121, 130; Beverly v. Central Illinois Electric & Gas Co., 5 Ill. App.2d 27. The rule is the same whether the charge is general negligence or wilful and wanton misconduct. Our Illinois courts have repeatedly said that the question of whether the defendant is guilty of wilful and wanton misconduct is a question of fact for the jury. Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Streeter v. Humrichouse, 357 Ill. 234; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569. A court of review will not interfere with the verdict of the jury unless the jury's verdict is contrary to the manifest weight of the evidence. To be against the "manifest weight of the evidence" requires that an opposite conclusion be clearly evident. Olin Industries, Inc. v. Wuellner, 1 Ill. App.2d 267; Griggas v. Clauson, 6 Ill. App.2d 412; Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, affirmed 401 Ill. 172. We have ...

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