Appeal from the Circuit Court of Kane county; the Hon. ROY J.
SOLFISBURG, JR., Judge, presiding. Reversed and remanded with
JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.
The Circuit Court of Kane County granted defendant's motion for judgment notwithstanding the verdict. An appropriate judgment on the complaint was entered for the defendant and against the plaintiff, from that judgment the plaintiff appeals.
The amended complaint was in two counts ordinary negligence and wilful and wanton misconduct. Defendant answered and counterclaimed in negligence. Defendant further answering the negligence count alleges that he was operating an emergency vehicle and that he was acting in a governmental capacity and therefore immune from liability, and further answering the wilful and wanton count alleges that he was operating an emergency vehicle.
The jury returned a general verdict finding the issues for the plaintiff and assessing his damages at $5,000. In answers to a special interrogatory, the jury found the defendant guilty of wilful and wanton misconduct. The jury further found by verdict that the counter-defendant was not guilty.
The verdict, being general in form, must be sustained on the count charging wilful and wanton misconduct, viz: Count two of the amended complaint. Ashton v. Sweeney, et al., 350 Ill. App. 135, 112 N.E.2d 183, and Countryman v. Sullivan, 344 Ill. App. 371, 100 N.E.2d 799.
The verdict being general, it is unnecessary to discuss what has been urged by the parties relative to defendant's liability for ordinary negligence. Neither party has suggested that defendant would not be liable for wilful and wanton misconduct even while operating an emergency vehicle in a governmental capacity. With this premise in mind we have examined the evidence to determine whether there is any evidence fairly tending to prove the wilful and wanton misconduct count alleged in plaintiff's amended complaint.
The yardstick to be applied has been announced in a host of cases and is fairly stated in Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847, wherein it was said,
"A motion for directed verdict or for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of the case. Gorczynski v. Nugent, 402 Ill. 147; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571." The court in that opinion further said they were not at all concerned with the weight or credibility of the evidence.
To like effect, Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855, wherein it was also stated, "No contradictory evidence, or other evidence of any kind or character, will justify a directed verdict or a judgment for the defendant notwithstanding the verdict, except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense." (Citing cases.)
It was said in McCormick v. Kopmann, 23 Ill. App.2d 189, 161 N.E.2d 720, in passing upon a motion to dismiss, "Proof unfavorable to the plaintiff, even though the plaintiff herself introduced that proof, cannot be considered. The determination to be made is whether there is any evidence (all unfavorable evidence excluded) upon which the jury could base a verdict for the plaintiff under the count in question, and if there is, the motion as to that count must be denied and the issues submitted to the jury."
There is considerable conflict in the occurrence evidence; however, this Court like the trial court in considering the propriety of entering a judgment notwithstanding the verdict, does not weigh the evidence, consider its credibility nor test its preponderance. Whether or not we differ with the jury's conclusion is of no moment so long as we are able to say that reasonable persons might differ in their conclusions.
Plaintiff Kasper drove his truck out of a residence driveway on the west side of State Route 31 turning northward. At this point Route 31 was a four-lane highway.
Kasper testified he stopped his truck about a foot from the west edge of the pavement, looked to the north and the south, and saw cars approaching in both lanes from each direction about 1,000 feet away. He did not see a red signal nor did he hear a siren. He then crossed over to the outer northbound lane without again looking to the south and proceeded northward until his truck was struck in the rear by the defendant's car. He testified the speed limit at that point was 40 miles per hour.
Mrs. Frank Harding, testifying on behalf of plaintiff, stated that she was proceeding southward on Route 31 north of the place of impact; that she saw the plaintiff's truck stopped in the driveway for a short time, possibly a minute or two; that plaintiff pulled out and at that time there were no oncoming northbound cars for a distance of four blocks; that plaintiff had cleared the southbound lane when she first noticed defendant's car in the outer lane about a half a block south of plaintiff's truck, which would be about 250 feet; that defendant's car was traveling about 90 miles per hour; and that she did not remember seeing a red light, and when first observed did not hear his siren. She further stated that defendant's car struck the left half or quarter of the rear of plaintiff's truck and ricocheted across the road and struck her car which at that time had been pulled to the side of the road. On cross examination she stated that plaintiff pulled out of the driveway when defendant was 250 feet south of the driveway.
George Maron, on behalf of plaintiff, testified that he was working in a corn crib some 200 feet from Route 31, that he heard the siren but not too loud, and that he heard the impact. He further stated that he saw a mark on the left hand side of the rear end of plaintiff's truck, and that the truck was lying on its left side seventy feet north of the driveway from which ...