Before DUFFY and CASTLE, Circuit Judges, and SWYGERT, District Judge.
This is an action for wrongful death and property damage, based upon diversity jurisdiction, brought by plaintiff as administrator of her deceased husband's estate. The deceased, George M. Euson, was fatally injured in an automobile accident as was the passenger in his car. Defendant, the other driver, counterclaimed for damages because of bodily injuries received in the accident. These appeals deal with the granting of a new trial following a jury verdict for plaintiff and the subsequent direction of verdicts of non-liability against both parties at the second trial.
The accident occurred on the outskirts of the village of Manito, Illinois, at about 11:00 a. m. on June 20, 1956. George M. Euson, a 36-year-old resident of Frankfort, Indiana, was driving a Buick automobile north on a road, approximately 18 feet wide, known as the Manito blacktop, leading into Manito from the south. Defendant Gerald Starrett, age 16, a resident of Manito, was driving his father's Chevrolet automobile west on Pine Street, a gravel road which forms a "T" intersection with the Manito blacktop at the southwest edge of the village. The Manito blacktop is a preferential street at that point. There was a stop sign on the east side of the street warning drivers approaching on Pine Street. The accident occurred when the two vehicles collided in or near the intersection.
The first trial resulted in a jury verdict for plaintiff. The trial judge granted a new trial, stating as his reason that "the evidence in the case warranted a finding that George M. Euson was not in the exercise of due care at the time of this most unfortunate occurrence."
At the second trial, before another judge, substantially the same evidence was adduced except that the court excluded the testimony of two witnesses relating to the speed of the Buick at varying distances from the place of the accident. The court directed verdicts of non-liability as to both claims and these appeals followed.
During the course of the first trial plaintiff objected to testimony relating to the Buick automobile's speed on the ground that such testimony related to speed at points remote from the place of the accident. The objection was overruled. One witness was then permitted to testify that the Buick passed him three-quarters of a mile south of Manito at an estimated speed of 80 to 85 miles per hour. This witness also testified that he lost sight of the Buick 400 feet from the Pine Street intersection; later he placed this distance at 1000 feet. A motion to strike the testimony was denied, the court stating "it creates a jury question." Another witness then testified that he likewise was passed by the Buick about a mile and a half from Manito and estimated its speed at 100 miles per hour.
The defendant was precluded by Illinois law from testifying. There were no other eyewitnesses to the collision. One witness, a 14-year-old boy who was north of the intersection, testified he saw defendant's car turn onto the blacktop and head south, and that from the top of the hill approximately 400 feet south to the intersection he saw no approaching traffic; that his attention was momentarily diverted, but that upon hearing the crash he saw the Starrett car resting on the east side of the road and the Buick near a barricade on the west side. Another witness testified that from her home immediately west of the intersection she saw the defendant driving toward the blacktop; that she looked elsewhere until she heard the crash and then saw the two cars in motion in the south portion of the intersection.
Other witnesses testified about the position of the cars after the accident, the location of two gouge marks in the blacktop at or near the intersection, and the location of the debris caused by the collision.
Photographs introduced in evidence show two gouge marks in the blacktop. One appears in the southeast portion of the intersection and the other in the southbound lane of traffic. An Illinois State Police trooper testified that the gouge marks in the southbound lane were 45-50 feet south of the intersection. He also testified that debris was in the general area of the intersection to the south and that it was in both lanes of the highway. A school-bus driver who came upon the scene shortly after the accident testified that there was little debris and that was on the east side of the highway. He also testified that he could remember no gouge marks on the west side of the highway. He said he left before the wrecked cars were towed away. Another witness testified that he visited the scene immediately after the collision and that he saw a small amount of debris in the east lane and close to the center of the highway.
At the first trial a businessman of Springfield, Illinois, who was an acquaintance of the deceased for some years, testified that George M. Euson was a careful driver; similar testimony was given by a Catholic priest during the second trial.
The essential question presented by these appeals is whether the district court was in error in directing verdicts at the conclusion of the evidence at the second trial. We must decide whether there is any evidence in the record which would support a finding for the party against whom the verdict was directed.Heller v. Select Lake City Theatre Operating Co., 7 Cir., 1951, 157 F.2d 649. Preponderance of the evidence and credibility of the witnesses cannot be considered.
It is uncontroverted that the defendant approached the Manito blacktop, a preferential road, from the east on Pine Street, where there was a stop sign. Section 167(b) of Chapter 95 1/2, Illinois Rev.Stat., requires the driver of a vehicle approaching a preferential road to yield the right-of-way to vehicles on the through highway which are approaching so closely as to constitute an immediate hazard. Mere stopping is not sufficient; the driver must not proceed without determining that he can do so safely. Thomas v. Buchanan, 357 Ill. 270, 192 N.E. 215; Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311. Violation of this statute by the defendant would be negligence.
To answer the question whether defendant violated the statute, the movement and location of the cars immediately before the collision must be determined. In this case we have only circumstantial evidence upon which to make that determination. Circumstantial evidence may, of course, be utilized, but it is essential that it not be susceptible of inconsistent inferences. Otherwise, the conclusion becomes a mere guess. Authority for this ...