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Moss v. Wagner

JUNE 4, 1962.

MATILDA MOSS, PLAINTIFF-APPELLANT,

v.

JOHN WAGNER, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 20, 1962.

This is a personal injury action, in which the jury returned a $19,000 verdict in favor of plaintiff, Matilda Moss, on which judgment was entered. Subsequently the trial court sustained defendant John Wagner's motion for judgment notwithstanding the verdict, and judgment was entered for the defendant and against the plaintiff. Defendant's alternative motion for a new trial was denied. Plaintiff appeals.

Defendant's motion for judgment notwithstanding the verdict presented the single question whether there was, in the record, any evidence which, standing alone and taken with all its intendments most favorable to plaintiff, tended to prove the material elements of her case. Evidence favorable to plaintiff's case was all that could be considered by the trial court in this inquiry. If there was a total failure to prove one or more of the essential elements of plaintiff's case, specifically, as contended by defendant, due care on her part or negligence on the part of the defendant, the motion was properly sustained. Osborn v. Leuffgen, 381 Ill. 295, 296, 45 N.E.2d 622 (1942); Tidholm v. Tidholm, 391 Ill. 19, 24, 62 N.E.2d 473 (1945); Tucker v. New York Cent. & St. L.R. Co., 12 Ill.2d 532, 534, 147 N.E.2d 376 (1958).

It is plaintiff's theory that there was ample evidence to support the verdict and judgment for plaintiff. The record shows that on June 27, 1953, at about 9:30 in the morning, plaintiff was injured in an intersectional collision within the city limits of Marengo, Illinois. It was a clear day, and the pavement was dry. Plaintiff was operating her automobile in an easterly direction on Grant Highway, a preferred highway, which ran in an easterly and westerly direction. In the intersection of East Street, a street running northwesterly and southeasterly, plaintiff's automobile collided with defendant's automobile, which had entered the intersection from the north. Grant Highway, also known as Route 20, is between 42 and 44 feet in width. It has a dividing line down the center. East Street is a narrower street and joins Grant Highway at an angle and widens out to about 40 feet at that point. There is a stop sign on East Street, set back about 20 to 25 feet from Route 20. There is no stop sign requiring traffic on Route 20 to stop for East Street.

East Street, where it intersects Route 20, is described as a "T" intersection. About 100 to 150 feet west of this intersection is another "T" intersection, being the intersection of Elm Street and Route 20. Elm Street comes into Route 20 from the south and stops at Route 20.

There were two occurrence witnesses, plaintiff and a bystanding neighbor. Defendant did not testify in his own defense and was not called by plaintiff as an adverse witness. The record contains photographs of the intersection, of plaintiff's automobile, and of the telephone pole struck by plaintiff's car.

The bystander testified that he noticed a car coming from the west and a car coming from the north, and they had a collision. He did not observe whether the car coming off East Street stopped for the stop sign or not. When he saw the cars they were already out into the intersection.

Plaintiff testified that, as she approached Elm Street, she looked to her right to see what traffic might be coming from that direction, and slowed down to be sure that an approaching car on Elm Street would stop before entering Route 20. She then looked to her left at East Street and could see 75 to 80 feet up East Street. She saw nothing on East Street and no car at the stop sign. At this time she was about 100 to 150 feet west of East Street.

Plaintiff continued on Route 20 in an easterly direction. She was in the outside lane next to the curb, going about 20 miles per hour. There were children about, and she was looking straight ahead, concentrating on her side of the road. She observed a cattle truck traveling in a westerly direction in the north lane of Route 20, which was about 100 feet from her car at the time of the collision.

As plaintiff entered that "portion of U.S. 20 that East Street would intersect," she again looked up East Street, and "at that time I saw a car and he was coming across the center line of 20." By that time her vehicle was in the center of East Street, and the other car was practically on top of her. She stepped on the brake as hard as she could, but in that instant defendant hit her left front fender and wheel. Both cars were in motion at the time of the collision, and plaintiff's car went over the curb about 60 or 75 feet from the point of impact and hit a tree and a telephone pole.

[3-5] A necessary element of plaintiff's case was proof of negligence on the part of defendant. Plaintiff's proof shows a collision of two cars. There is no evidence in the record of what defendant did immediately before the collision. Negligence is a positive wrong, and the burden of proving defendant's negligence was upon plaintiff. It was not defendant's burden to disprove negligence. The mere happening of an accident does not, of itself, raise any presumption of negligence on the part of defendant. Brown v. Boyles, 27 Ill. App.2d 114, 124, 125, 169 N.E.2d 273 (1960).

In the absence of direct evidence of what defendant did immediately before the collision, plaintiff argues that "somehow the defendant's car managed to collide with her car at the intersection and the conclusion is inescapable that during the time the Moss car was covering the 100 to 150 feet just mentioned, the Wagner car covered the 75 to 80 feet down East Street, failed to stop at the intersection and ran into the Moss car." Using the presumption that defendant failed to stop at the intersection, plaintiff cites cases which outline the duty of a motorist approaching or entering a preferred highway. In view of our determination, these cases are not in point.

As contended by defendant, neither conjecture nor speculation will sustain a charge of negligence. Negligence is always a question of fact that must be alleged and proved as averred. It cannot be supported by mere conjecture or surmise but must be made referrable to some specific ...


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