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Collister v. Kroblin

MAY 16, 1961.

GERALD G. COLLISTER, PLAINTIFF-APPELLANT,

v.

ALLEN E. KROBLIN, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McLean county; the Hon. WILLIAM E. RADLIFF, Judge, presiding. Affirmed.

CARROLL, PRESIDING JUSTICE.

This is an action for personal injuries and property damage arising out of a collision between plaintiff's automobile and defendant's truck, which was being driven by its employee, Glenn Hamilton. The jury returned a verdict for defendant upon which judgment was entered. Plaintiff's post-trial motion was denied and this appeal followed.

The two grounds relied upon for reversal are that the verdict was clearly and manifestly against the weight of the evidence and that the jury was prejudiced against plaintiff by certain misconduct of defendant's counsel.

The accident occurred near Shirley, Illinois on U.S. Route 66, at approximately midnight of June 4, 1959. Road conditions and the weather were good. At that point Route 66 is a 4 lane highway running north and south with 2 sets of lanes separated by a grass divider, which is 30 to 40 feet wide. Plaintiff testified that on the night of the accident he left Bloomington about 7 P.M. to go to Lincoln, Illinois; that he left Lincoln for Bloomington about 10:30 P.M. proceeding north on Route 66; that he stopped at Atlanta, Illinois for coffee and sandwiches and was there about one-half hour; that he then drove north at about 30 miles per hour; that as he approached the Dixie Truck Stop about 16 miles from Atlanta, he slowed down and was going to stop to get another cup of coffee; that he then decided to go on and after proceeding approximately 4 miles the accident occurred; that his speed was then 30 to 35 miles per hour; that he was driving in the right hand or north bound lane; that through his rear vision mirror he saw the lights of defendant's truck come up behind him; that at that time both vehicles were in the right traffic lane; that almost as soon as he saw the defendant's truck, it struck the rear of his car, driving him off the road and over an embankment; that he was thrown from the car; that he told the State Police that he did not want to go to the hospital and was taken to his room, and that the following day his neck bothered him and he consulted a doctor who sent him to a hospital.

Glenn Hamilton, the driver of defendant's truck, testified that he had slept during the day of June 4 just south of Springfield; that he was driving north on Route 66 towards Bloomington; that he stopped at the Dixie Truck Stop at McLean, leaving there between 11 and 12 o'clock; that traffic was light; that his speed was about 45 miles per hour; that he was driving a tractor-trailer unit, the tractor having 4 sets of single wheels and the trailer having 4 sets of dual wheels; that he came up behind plaintiff's Pontiac car near Shirley; that at that point the highway was level; that when he noticed plaintiff's car he was about two truck lengths behind it; that its lights were burning; that he pulled into the left lane to pass it; that when he started around the Pontiac it also started to pull into the left lane; that when he struck the Pontiac it was partially in the left hand lane; that his truck was completely in the passing lane and 1 1/2 to 2 feet to the left of the center line of the north bound lane; that prior to the impact he applied his brakes; that he examined the pavement after the accident and saw one tire mark made by the truck's right front wheel, which was 2 feet west of the center line; that these tire marks were where the truck's right wheels were at the time of the impact; that there was no other tire marks in the passing lane; that there was also water from the truck's radiator in that lane; that the line made by this water was in the center of the passing lane; that after the accident the truck went off the pavement to the left and stopped; that he saw dirt on the pavement on both sides of the black line and dirt extended to the left of the black line all the way to the berm.

Virgil Brooks, a deputy sheriff, testified to seeing skid marks in both the left and right hand lanes; that the skid marks were both double and single; that the farthest the skid marks were to the left of the center line was 2 1/2 to 3 feet.

Gerald Barkley, state trooper, testified that he saw glass and debris in the immediate vicinity of the scene of the accident, and that there were skid marks 23 feet north of the debris.

Ed Beverage, part-time deputy sheriff, on direct examination, testified that he saw double skid marks in the outer lane, 1 1/2 feet to the outside of the 4 lane pavement; that there were two skid marks, one on the left and one on the right of the center line. On cross-examination this witness stated that the dual mark, which was in the outer lane "was the lane closest to the south bound lane of 66."

The foregoing substantially represents the evidence pertaining to the manner in which the accident occurred. Since the jury returned a not guilty verdict, there appears to be no necessity for detailing the evidence pertaining to damages.

As to the plaintiff's contention that the verdict was against the manifest weight of the evidence, it is argued that the factual version of the accident as related by the defendant was not in conflict with that given by plaintiff and that the jury therefore had no choice other than to accept the latter's version. We think the testimony of the occurrence witnesses conclusively demonstrates that there is no merit in such argument. The driver testified that after he pulled over to the left hand lane and was in the process of passing plaintiff's vehicle, the latter also pulled over into the left lane and the impact occurred between the rear of the car and the front of the truck. Plaintiff's version of the accident was that as he was proceeding along highway 66 defendant's truck came up behind him and when the driver noticed the plaintiff, he applied his brakes and turned to the left but not in time to prevent striking the plaintiff's car. Obviously such version of the accident is contrary to that related by defendant. There is also a conflict in the evidence as to the location of the debris and skid marks. Thus the jury were given a choice between two contrary theories as to how the accident happened.

The law in this state is well settled that a reviewing court cannot substitute its judgment for that of a jury in passing upon the weight and credibility of conflicting testimony. DeLegge v. Karlsen, 17 Ill. App.2d 69, 149 N.E.2d 491.

It is also a well established rule that 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, 144 N.E.2d 165.

Likewise a verdict should not be set aside merely because the jury could have drawn different inferences from the evidence. Danhof v. Osborne, 10 Ill. App.2d 529, 135 N.E.2d 492.

In this case the jury saw fit to accept one of two conflicting versions as to how the accident happened, but we cannot say that a conclusion opposite to that reached was clearly apparent. In such situation this Court ...


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