Appeal from the Circuit Court of Cook County; the Hon. JOHN
GUTKNECHT, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
An action was brought in the Circuit Court of Cook County by Miodrag Vasic (hereafter referred to as the plaintiff) against Chicago Transit Authority (hereafter referred to as the defendant) to recover for personal injuries sustained by the plaintiff when he came into contact with a bus owned by the defendant and driven by its agent at the intersection of Adams Street and State Street in Chicago, Illinois. The plaintiff, a pedestrian, was walking in a southerly direction over Adams Street. The bus, which had been proceeding south on State Street, was making a right turn into Adams Street so as to proceed in a westerly direction Page 11d on Adams Street. The jury rendered a verdict of not guilty on behalf of the defendant. Judgment was entered on the verdict and the court overruled a post-trial motion filed by the plaintiff asking for a new trial. This appeal is taken from the judgment and order of the court.
In the case before us the plaintiff moved for a new trial on the ground that the verdict was against the manifest weight of the evidence. In Read v. Cummings, 324 Ill. App. 607, 59 N.E.2d 325, the court distinguishes between the function of a trial court in setting aside a verdict because it is against the weight of the evidence and the function of a reviewing court in setting aside a verdict because it is against the manifest weight of the evidence, where a motion is made in the trial court asking for a new trial because the verdict is against the weight of the evidence, and the court says:
"It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge. . . . the question Page 11e of the preponderance of the evidence does not arise at all in this court. (Valant v. Metropolitan Life Ins. Co., 302 Ill. App. 196; Sears, Roebuck & Co. v. Mears-Slayton Lumber Co., 226 Ill. App. 287-290.) . . ."
A court of review in passing on the question of whether the verdict is against the manifest weight of the evidence must take into consideration not only the verdict of the jury but the fact that the trial judge also saw and heard the witnesses, heard arguments of counsel, and then denied the motion for new trial. Mokrzycki v. Olson Rug Co., 28 Ill. App.2d 117, 170 N.E.2d 635. In order for the court to determine that the verdict is against the manifest weight of the evidence an opposite conclusion must be clearly evident or the jury's verdict palpably erroneous and wholly unwarranted from the manifest weight of the evidence. Benkowsky v. Chicago Transit Authority, 28 Ill. App.2d 257, 171 N.E.2d 416. A verdict will not be set aside merely because the jury could have found differently or because judges feel that other conclusions would be more reasonable. Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836. In Devine v. Delano, 272 Ill. 166, 180, 111 N.E. 742, 748, the court says:
"A greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts. (1 Greenleaf on Evidence, 16th ed sec 1; Commonwealth v. Webster, 5 Cush 295; 11 Am & Eng Ency of Law, 2d ed 490.)"
"Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is Page 11f recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue."
In this State in a jury trial in an action involving damages to person or property caused by the negligence of a driver of a vehicle, known at common law as an action on the case, the duty is imposed upon the plaintiff to prove by a preponderance or greater weight of the evidence that the defendant was negligent and that his negligence was a proximate cause of the resulting injury, and it is equally his duty to prove by a preponderance or greater weight of the evidence either that the plaintiff was not guilty of any negligence or, if there were some negligence on the part of the plaintiff, that such negligence was not a proximate cause of the injury.
In the instant case the occurrence was at the intersection of State and Adams Streets. State Street is a thoroughfare running north and south and is intersected by Adams Street running east and west. On State Street both north and south traffic is permissible. On Adams traffic can only move west. The intersection is controlled by traffic lights. The plaintiff was crossing the intersection on the west side of State Street walking south in the space properly reserved Page 11g for pedestrians. The light was green for north and south traffic at the time he commenced to cross the street. For north and south traffic the lights would remain green for 36 seconds, with three seconds of amber during the last three seconds of green. Then would follow a red light for 29 seconds; during the last three seconds of the 29 the amber light would also be on. The intersection was well lighted. At the intersection State Street was 59 feet 7 inches from curb to curb. Adams Street was 37 feet 8 inches from curb to curb west of State Street. The north sidewalk of Adams Street was 14 feet wide.
The defendant through its agent was operating a passenger bus, which was 35 feet long and 7 or 8 feet wide. It was proceeding south on State Street and the intention was to make a right turn into Adams Street and proceed west. It was approximately six-o'clock in the evening and there was a light drizzling rain. The bus was equipped with windshield wipers and the visibility of the driver of the bus was not obscured. There is a sharp conflict in the evidence as to the portion of the bus which came in contact with the plaintiff and as to how the accident occurred.
The plaintiff testified in his own behalf that when he reached the northwest corner of Adams and State the light for State Street changed from green to red; that he then proceeded to cross Adams Street; that he looked to the left and saw no one going west, nor did he see any bus standing on State Street north of the corner when he turned and was facing in an easterly direction; and that he was the first person crossing from north to south. He did not again look to the left. He also testified that when he was about three-fourths of the way across he saw light from the left side of him and the right front corner of the bus hit him. Page 11h
A police officer testified that he saw the bus after the accident, the back end being on the east end of the crosswalk on the west side of the street; that the front of the bus was in the lane near the south curb; that on the right-hand side of the bus the plaintiff was lying on the street at the west end of the crosswalk, probably a foot or two west of the west line of the crosswalk; that he was about 17 or 18 feet from the north curb of the street, perhaps three feet north of the center line of Adams; and that he was near the rear exit door of the bus, which is a few feet beyond the rear wheel.
Another witness generally corroborated the police officer's testimony with reference to the ...