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Henderson v. Shives

JUNE 7, 1956.




Appeal from the Circuit Court of Iroquois county; the Hon. ROSCOE C. SOUTH, Judge, presiding. Judgment affirmed.


This action was brought to recover damages for personal injuries sustained by John Henderson, a minor, and for damages sustained by his father, Charles L. Henderson, by reason of medical expenses and loss of his son's services, occasioned by the alleged negligence of the defendant in the operation of his truck. The jury returned a verdict for the defendant, upon which the court entered the judgment from which this appeal is taken.

Plaintiffs' motion for a new trial, and their supplemental motion for new trial, the latter being in the nature of a motion based upon newly discovered evidence, were denied. The plaintiffs' theory is that the court erred in giving to the jury defendant's instruction 4; that the verdict is contrary to the manifest weight of the evidence; and that the court erred in denying plaintiffs' supplemental motion for new trial.

Defendant's theory of the events which occurred immediately prior to the collision involved in this suit is that the plaintiff, John Henderson, who was the driver of a 1941 Ford tudor sedan, had driven the automobile partially off the pavement to his right, and, in attempting to return to the pavement over a three or four inch drop-off, lost control of the automobile, crossed his traffic lane, and struck the left rear wheels of defendant's cattle truck, which was in its own lane of traffic.

On June 29, 1953, at about 3:30 a.m., the plaintiff, John Henderson, who lacked a few days being nineteen years old, was driving a black 1941 Ford tudor sedan, containing himself and four other boys, northbound on U.S. Highway 54 near the outskirts of Thawville, Illinois, at which time a collision occurred between the plaintiff's car and a Chevrolet truck, bound in the opposite direction, owned and operated by the defendant, who was returning from Chicago where he had delivered a load of cattle at the Chicago Stockyards about midnight.

The collision occurred in the south part of a long gradual S-curve, each part of which is eight-tenths of a mile long, the curvature being to the right for southbound traffic and to the left for northbound traffic. The point of impact was described in the evidence as being about thirty feet south of the intersection of a gravel road with U.S. Highway 54. Neither vehicle had been on, nor were they destined for, said gravel road. U.S. Highway 54 is, at that point, a concrete surfaced two-lane highway 24 feet wide, divided by a center line into lanes, and runs generally in a north and south direction.

Plaintiff, John Henderson, testified that he was driving at about 50 miles per hour, that the lights and brakes of his car functioned properly, that he was driving on the right side of the highway, and that he had no specific recollection of seeing the truck or of the impact itself.

Defendant testified that he noticed the lights of a car approaching him, but hadn't noticed anything unusual about its position on the roadway until it was within 100 to 150 feet of his truck; at that time the car was partially off the pavement and coming back on; defendant tried to avoid the oncoming car; and, to keep it from hitting him, took to the shoulder of the road, but could not get out of its way. He testified that the car driven by plaintiff, John Henderson, hit the left rear dual wheel of the truck, pushed the rear axle far enough back that the hydraulic brake hose was pulled in two and the truck rolled 400 to 425 feet down an embankment and along the right-of-way, without any brakes. After the collision, the plaintiff's Ford continued in a northerly direction, coming to rest on its right side in the southbound lane at a point about 215 feet from the point of impact and was found headed south.

Plaintiffs' witnesses, Leonard Worden and Elmer Nelson, the latter a state highway policeman, testified that there was on the surface of the highway at about the point of impact a dual wheel skidmark which continued on and was traceable to the defendant's truck where it had come to rest, and that this skidmark at about the point of impact was between 1 and 1 1/2 feet over the center line in the northbound lane. Worden further testified that he had seen the defendant and two other men standing by this skidmark after the collision and that one or more of them had been scuffing at the mark with their feet. Defendant denied the presence of said tire mark and the alleged scuffing. Defendant was corroborated by the witness, Russel Weakley.

While the witnesses for defendant were measuring the distance that the 1941 Ford slid on its side, they also noticed a black tire mark alongside the drop-off on the side of the pavement on which John Henderson was driving, which was 152 feet long and ended 40 feet before the point of impact.

[1-3] The plaintiffs contend that the verdict was against the manifest weight of the evidence. 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 plaintiffs further contend that their supplemental motion for new trial should have been granted on the ground of newly discovered evidence. In support of same, they submitted the affidavit of Paul Eshleman, one of the witnesses who testified on behalf of defendant at the trial; the affidavit of Paul F. Davidson, attorney engaged by Robert Stephens, the owner of the Ford automobile involved in the collision, which was being driven by plaintiff, John Henderson; and the affidavit of Elmo F. Petersen, one of plaintiffs' attorneys in this cause.

In his affidavit, Paul Eshleman stated that he was proprietor of the Tower Service Station at Thawville, Illinois, on June 29, 1953, and for sometime thereafter; that the 1941 Ford sedan driven by John Henderson on said date which was involved in the accident, was stored at said service station in the custody of affiant immediately after the accident and that the said vehicle was still at said station. Affiant further stated that on or about the 30th day of June 1953, a certain person who represented himself to be an adjuster for Country Mutual Casualty Company and who represented that the said company then had a policy of liability insurance in force covering the liability of James Shives, the defendant in said action, requested said affiant to detach from the said motor vehicle the right rear tire thereof and that pursuant to this request, the affiant caused the right rear tire of the said vehicle to be removed from the said vehicle ...

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