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Moss v. Wagner

NOVEMBER 18, 1963.

MATILDA MOSS, APPELLANT,

v.

JOHN WAGNER, APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a personal injury action. The jury awarded the plaintiff $19,000, but the trial court entered judgment for the defendant notwithstanding the verdict. Defendant's alternative motion for a new trial was denied. The affirmance of the judgment for the defendant by this court (Moss v. Wagner, 36 Ill. App.2d 86, 183 N.E.2d 528 (1962)) was reversed by the Supreme Court in Moss v. Wagner, 27 Ill.2d 551, 190 N.E.2d 305 (1963), and the cause was remanded to this court "for the purpose of considering the defendant's further contention that the evidence established plaintiff's contributory negligence as a matter of law."

A partial restatement of the evidence is required. On the morning of June 27, 1953, plaintiff was operating her automobile in an easterly direction on Route 20, an east and west preferred highway. She was injured in a collision within the city limits of Marengo, in the intersection of Route 20 and East Street, a street running northwesterly and southeasterly. East Street, where it intersects Route 20, is described as a "T" intersection, with a stop sign on East Street requiring traffic to stop for Route 20. 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.

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. Defendant's evidence consisted only of four photographs.

In our previous consideration of this case, we said (p 87):

"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."

The Supreme Court (at p 556) determined that "sufficient evidence was introduced so as to present a question of fact for the jury as to whether the defendant drove his car into the intersection without properly observing the through traffic and yielding the right of way to plaintiff who was traveling on the protected street." Therefore, the only question for this court to determine at this time is whether the evidence "established plaintiff's contributory negligence as a matter of law." If there is any evidence in the record, standing alone and considered to be true, taken with all its inferences favorable to plaintiff, which might reasonably be drawn therefrom, tending to prove that plaintiff, before and at the time of the occurrence, was using ordinary care for her own safety, then such issue was for the jury and not a matter of law.

Plaintiff testified that the day was clear and pavement dry. 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. At this time she was about 100 to 150 feet west of East Street. She then looked to her left to East Street and could see 75 to 80 feet up East Street. "I saw no vehicle of any kind and I proceeded along on U.S. 20," traveling about 20 miles an hour in the south outside lane next to the curb. "I was looking straight ahead concentrating on my side of the road because it was Saturday morning and there were children out. . . . I again looked at East Street before the accident happened and at that time my vehicle was in the center of East Street and this other car was practically on top of me at that time." She stepped on the brakes 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. Plaintiff also testified that she did not hear the other vehicle blow its horn before the collision, and 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. All of this evidence stands uncontradicted.

Considering the foregoing evidence standing alone and as true, taken with all its inferences favorable to plaintiff, which might reasonably be drawn therefrom, we are of the opinion that reasonable minds might draw different inferences as to whether plaintiff, before and at the time of the occurrence, was using ordinary care for her own safety. Therefore, we cannot say, as a matter of law, that the evidence in this case established contributory negligence or lack of due care on plaintiff's part. We conclude that this second issue was also a question for the jury. It follows that the trial court was in error in sustaining defendant's motion for judgment notwithstanding the verdict, and we so hold.

As defendant's motion for a new trial was denied and no cross-appeal was taken, the judgment of the trial court is reversed and the matter is remanded to the trial court with directions to deny defendant's motion for judgment notwithstanding the verdict and to reinstate the judgment for plaintiff.

Reversed and remanded with directions.

BURMAN, J., concurs.

ENGLISH, P.J., dissenting:

The question, as I see it, is not whether there was evidence tending to show negligence on the part of plaintiff, but, rather, whether there was evidence tending to show the exercise of ordinary care on her part. A failure of proof on the issue ...


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