Appeal from the Superior Court of Cook county; the Hon. FRANK
M. PADDEN, Judge, presiding. Judgment reversed and cause remanded
JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 26, 1958.
This is an appeal by defendant, Victor E. Karlsen, from a judgment in favor of plaintiff, Luke De Legge, in an action for personal injuries. Trial was had by jury. The trial court overruled defendant's post-trial motion for arrest of judgment notwithstanding the verdict and a new trial.
Defendant's principal contentions are that the trial court erred because the verdict and judgment are against the manifest weight of the evidence, and that the trial court erred in giving one of plaintiff's instructions.
A review of the evidence reveals that the accident which caused plaintiff's injury took place on November 7, 1951, between 11:00 a.m. and 1:00 p.m. at the intersection of Fifth and Cicero avenues in Chicago, Illinois. Cicero avenue and Fifth avenue are four-lane highways. Fifth avenue runs at a right angle from the northeast to the southwest across Cicero avenue. There is a stop sign for westbound traffic on Fifth avenue at the intersection with Cicero. Approximately five feet south of Fifth avenue there is a railroad viaduct which runs east and west above Cicero avenue. The viaduct is supported by pillars, one of which is located in the center of Cicero avenue. About a block to a block and a half north of the viaduct, Cicero avenue begins a decline which reaches its lowest point at the underpass of the railroad viaduct. Cicero has a high double curb on the west edge and streetcar tracks in the center. As it reaches the viaduct at Fifth avenue it narrows to a two-lane highway. At the time of the occurrence the streets were covered with snow. It was slippery and slushy. Fifth avenue was reduced to two lanes of traffic and so was Cicero avenue to the north of the underpass.
Testifying to the occurrence, plaintiff's witness, Edward L. McCormick, in substance, stated that just prior to the occurrence he was driving west on Fifth avenue behind defendant's car, which stopped at the stop sign for Cicero avenue. Traffic was coming from the north and as it cleared defendant pulled out to turn left and south on Cicero avenue. At the same time a truck driven by plaintiff was approaching from the north going south on the downgrade at a speed of about twenty miles an hour. Plaintiff, when about fifty feet away, blew his horn and defendant hesitated for a second, then proceeded across the road into the southbound lane. The wheels of defendant's car started to spin on the ice and plaintiff applied his brakes and started sliding. He cut his wheels to avoid hitting defendant. Defendant's wheels stopped spinning on the ice and he proceeded on under the viaduct without stopping. Plaintiff's truck continued to slide until it went over the abutment and into a post. He pulled out and around plaintiff to follow defendant. He pursued defendant until he came to Twelfth street [Roosevelt road] where defendant slowed down. He wrote the car's license number on a sheet of paper but didn't attempt to stop him. He turned around and returned to plaintiff. He gave plaintiff the license number and told him the color of defendant's car.
Plaintiff, in substance, said that about 11:00 a.m. before the occurrence, he was driving a tractor and tank trailer, which was empty, south on Cicero avenue. As he came down the ramp that goes under the viaduct he saw defendant stop at Fifth avenue. He blew his horn. The car proceeded. Then all of a sudden the car got into the center of the street and seemed to stop. Defendant gave plaintiff the go ahead sign. Plaintiff's wheels were spinning on the ice. They must have grabbed and defendant cut in front of him. He put on his brakes in order to avoid smashing the car and skidded into the posts at the curb and stopped. McCormick came to him shortly after the accident and gave him the license number of the car. He copied it down on a piece of paper.
On cross-examination plaintiff said that there is a gas station on the west side of Cicero near Congress about a block north, or three to four hundred feet from where the accident occurred. He didn't remember if he saw defendant stopping at Fifth avenue but he could see the intersection of Fifth avenue and Cicero. He admitted that in a deposition he stated that he had seen defendant on Fifth avenue as he passed the gas station and that he had blown his horn. Defendant moved into the intersection after he blew his horn. He was going about fifteen miles an hour. He could stop the truck with the air brakes in ten feet. He further stated on cross-examination that under the conditions then existing he could bring the empty truck to a stop within fifteen or twenty feet. He attempted to bring the truck to a halt when it was 150 feet away. His truck was sliding. The closest it came to the other car was about one foot. He didn't notice the color of it. When his truck came to a stop, it blocked the entire viaduct and no car could pass in the right lane. After the accident he pulled the truck out and drove down Cicero. He saw defendant's car parked on the other side of Roosevelt road near Cicero but didn't stop as there was no parking space.
Defendant testified that he is a lawyer; that on November 7, 1951, he worked part time as personnel director for the Brad Foote Gear Works at 1309 South Cicero avenue. He also operated a real estate and law office at 3422 West North avenue in Chicago. He lived in River Forest. He had occasion to go from his law office to the gear plant in November. He always crossed Cicero and Fifth avenue. He couldn't say definitely where he went on the morning of November 7. His recollection was that he went to his office at the plant and stayed there until his work was done, which was about 12:30 p.m., and then went to his law office on North avenue. As a lawyer, he kept a calendar and had looked at it and on that date it was a blank. He had kept the calendar but a couple of years later threw it away. He first knew that there was a claim against him in December of 1951. He had two sons who drove the car. His wife also drove the car but they had no friends in the vicinity of Cicero and Fifth avenue that she would be visiting. He had a green Studebaker sedan but did not recall the license number. He admitted that in answer to interrogatories, which were filed in 1955, he had answered that he owned an automobile on November 7, 1951, with license number 11782-561. He usually drove a Cadillac to work. There were two other Studebakers similar to his owned by employees at the plant.
Helene Mikuzis, a witness for defendant, said she worked for the Brad Foote Gear Works in the personnel department in 1951. Defendant worked from eight o'clock in the morning to two o'clock in the afternoon. He was in the plant on November 7, 1951. She remembered because about December 23 he had talked to her about the accident and asked if he had lost any time in November. She definitely remembered that he had not lost any time because she checked the records.
Other witnesses substantiated parts of plaintiff's testimony.
As to defendant's contention that the verdict and judgment were against the manifest weight of the evidence, he alleges (1) that the finding that the Studebaker automobile allegedly involved in this occurrence was being operated by defendant, rests solely in the area of guess, surmise and suspicion; (2) that the evidence failed to establish that the driver of the Studebaker was guilty of actionable negligence, and (3) that the plaintiff was guilty of contributory negligence as a matter of law.
The law is well settled in this State that a reviewing court cannot substitute its judgment for that of a jury in passing on the weight and credibility of conflicting testimony. City of Monticello v. LeCrone, 414 Ill. 550. Where the evidence is conflicting in order for a verdict to be contrary to the manifest weight of the evidence an opposite conclusion must be clearly apparent. Stone v. Guthrie, 14 Ill. App.2d 137; Bunton v. Illinois Cent. R. Co., 15 Ill. App.2d 311; Griggas v. Clauson, 6 Ill. App.2d 412; Borst v. Langsdale, 8 Ill. App.2d 88.
On the first two points advanced by defendant under its first contention, an examination of the evidence clearly indicates substantial conflict based on plaintiff's own evidence, but we cannot say that an opposite conclusion to that of the jury was clearly apparent. We will not ...