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Turner v. Seyfert

DECEMBER 6, 1963.

MILDRED TURNER, AS ADMINISTRATOR OF THE ESTATE OF DONNA TURNER, DECEASED, PLAINTIFF-APPELLANT,

v.

JAMES SEYFERT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Vermilion County; the Hon. JOHN F. SPIVEY, Judge, presiding. Reversed and remanded for new trial.

REYNOLDS, J.

Donna Turner, a six-year-old child, was killed near the mailbox in front of her home when struck by an automobile driven by James Seyfert. The roadway was a blacktop highway, approximately 20 feet in width, and fairly level at the place of the accident. The weather was clear and the pavement dry. The time was about 9:00 o'clock a.m. Seyfert was driving north on the highway at a speed estimated at from 60 to 80 miles per hour. Seyfert skidded 462 feet, veering from the center of the northbound lane partly into the southbound lane, then back into the northbound lane to the place where the Seyfert automobile stopped, approximately 500 feet from the point where the child was struck. The cause was tried before a jury and the jury returned a verdict for the defendant. The plaintiff appeals.

The plaintiff contends that the evidence clearly established the defendant's negligence as a matter of law and that the trial court should have granted a motion for judgment notwithstanding the verdict, or in the alternative a new trial, because the verdict and judgment was against the manifest weight of the evidence; that there was no evidence of contributory negligence and that the trial court erred in giving two instructions on contributory negligence.

The facts are fairly well established and only the speed of the defendant's automobile and the position of the child on the highway is not clear. Photographs introduced show the highway sloping slightly downward to the north where the accident occurred. It was established that defendant had a clear view of the highway at the mailbox where the accident occurred for some 500 feet to the south as he approached the point of collision. He met and passed a car about 150 feet south of the mailbox.

The automobile driven by the defendant was in good mechanical condition. The tires were good and the brakes had been checked a short time before the accident. A mechanic testified he had worked on the car and it was in good condition. The speedometer was broken, but this appeared to be the only mechanical failure of the Seyfert automobile. Some of the witnesses place the child in the middle of the highway, others in the northbound lane. Defendant claims he swerved to the left to avoid her. There was a mark, which might have been a mark caused by a sudden swerve of the defendant's car, just south of the mailbox, but this was not clearly connected. Defendant's car had a broken right front headlight, and a broken windshield on the right side. The child was tossed in the air and her body was on the hood of the defendant's automobile when it was stopped. Her shoes were found to the east of the highway a short distance from the mailbox, and her scarf on the highway.

The evidence showed that there were four families living in the immediate neighborhood and three of them had small children. The defendant had worked with his father on the Turner farm the year before and knew the Turner family, and knew that the children lived along the highway.

Immediately before the accident, Donna Turner, aged 6 years, Christine Clem, a neighbor's child, aged 8, Ava Turner, sister of Donna, aged 10, and Stephen Turner, brother of Donna, aged 6, were standing by the highway, about to cross it to go to a bridge nearby to collect rocks for a school project. The children waited until a southbound automobile passed, and Donna started across the road. Christine and Ava called to her to stop and she did stop, in the center or near the center of the highway. While stopped there she was struck by the automobile driven by Seyfert.

The evidence showed that Donna's parents had instructed the children to play in their yard and did not allow them to play on the highway; that they were busy with early morning activities and had checked to see what the children were doing and where they were shortly before the accident.

The plaintiff contends that the defendant was guilty of negligence as a matter of law and that the trial court should have granted plaintiff's motion for judgment notwithstanding the verdict or granted a new trial. Plaintiff asks this court to reverse the judgment and remand for a new trial solely on the question of damages. Plaintiff further contends that the judgment is contrary to the manifest weight of the evidence and should be set aside and a new trial ordered.

A motion for judgment notwithstanding the verdict or a motion for a directed verdict is only granted where the evidence is such that all reasonable minds would agree that the other party was negligent or that the negligence contributed proximately to the accident. Negligence does not become a question of law alone unless the acts constituting it are of such character that all reasonable men would concur in pronouncing it so. McDonald v. Stiner, 342 Ill. App. 651, 97 N.E.2d 573; Wallis v. Villanti, 2 Ill. App.2d 446, 452, 120 N.E.2d 76; Johnson v. Skau, 33 Ill. App.2d 280, 179 N.E.2d 40; Nutwood Drainage & Levee Dist. v. Mamer, 10 Ill.2d 101, 139 N.E.2d 247. When the evidence is all in, and a motion for a n.o.v. or for a directed verdict is made by the plaintiff, the trial court must consider all of the evidence in its aspect most favorable to the defendant, together with all reasonable inferences to be drawn therefrom, and if when so considered there is any evidence standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom, the court should not grant the motion. Johnson v. Skau, 33 Ill. App.2d 280, 284, 179 N.E.2d 40. In this case, the defendant was proceeding northward on an improved highway. He puts his speed at 60-65 miles per hour. He is meeting a car and this car may or may not have prevented his seeing the children by the side of the road. According to the testimony of Christine Clem, Donna ran out behind the southbound car. According to the testimony of Ava Turner, right after the southbound car passed them Donna ran out. This court cannot say, as a matter of law, that the defendant was negligent. The refusal to direct a verdict or to enter a judgment n.o.v. was not error.

As to the contention of the plaintiff that the verdict was against the manifest weight of the evidence, a different question is involved. While the courts have been reluctant to override the verdict of a jury as to a question of fact, it is well settled that in proper cases the courts will not only reverse the findings of a jury, but that the courts have a duty to do so. However, for the reviewing court to substitute its judgment for that of a jury the verdict must be against the manifest weight of the evidence, that is, an opposite conclusion is clearly evident. Niman v. Pecatonica Livestock Exchange, Inc., 13 Ill. App.2d 144, 141 N.E.2d 649; Arboit v. Gateway Transp. Co., 15 Ill. App.2d 500, 146 N.E.2d 582. It is not sufficient that a jury might have drawn different inferences, or that the reviewing court might have reached a different conclusion. Palmer v. Poynter, 24 Ill. App.2d 68, 163 N.E.2d 851; Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836. In the case of Vasic v. Chicago Transit Authority, 33 Ill. App.2d 11, 180 N.E.2d 347, in discussing the question of a verdict against the manifest weight of the evidence, the court said:

"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. . . ."

And there are a great number of recent cases that reiterate the rule that a disputed question of fact, which involves the weighing and consideration of the evidence, is primarily for the jury to decide. Lowe v. Gray, 39 Ill. App.2d 345, 188 N.E.2d 890; Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74. If it is a question of fact as to the negligence of the defendant, or the contributory negligence of the plaintiff, the verdict of the jury will only be overruled by the reviewing court where clearly and palpably erroneous. Lurie v. Newhall, 333 Ill. App. 173, 76 N.E.2d 813; Wallis v. Villanti, 2 Ill. App.2d 446, 120 N.E.2d 76.

Applying the rules of the above cases to the facts presented by the evidence in this case, two questions must be decided. 1. Was the defendant clearly negligent? 2. Was Max Turner, Mildred Turner or Ava Turner or either of them guilty of contributory negligence? A careful reading of the evidence fails to show any fact, upon which even an inference could be drawn, that either the mother, the father or the 10-year-old sister were negligent. The child Donna, being only six years old, cannot under Illinois law be guilty of contributory negligence. The parents were not required to keep a constant watch over the children ...


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