Appeal from the Circuit Court of Christian County; the Hon.
FRANKLIN R. DOVE, Judge, presiding. Affirmed.
This action is brought by the plaintiff under the Wrongful Death Statute for the death of Glen R. Royer, allegedly caused by Robert Graham. On October 14, 1961, two automobiles, one operated by Royer and one by Graham, collided killing both drivers. The administrator of the Graham estate filed a counterclaim and after trial by jury a verdict was returned in favor of the plaintiff on the complaint and against defendant on the counterclaim and judgment entered thereon. For purposes of clarity hereafter the decedent Royer will be referred to as plaintiff and the decedent Graham as defendant. Defendant appeals from the judgment entered in favor of plaintiff on the complaint but no appeal is taken from the judgment against the defendant on the counterclaim.
Counsel contends that the verdict is contrary to the law and evidence, that there is no competent evidence to sustain the jury's verdict as to negligence of the defendant or due care of the plaintiff and that the trial court erred in excluding certain evidence and refusing one of defendant's instructions. Defendant also contends that the judgment is against the manifest weight of the evidence.
The complaint charged defendant with negligently driving his automobile on the wrong side of the highway contrary to paragraph 152 of Chapter 95 1/2, Illinois Revised Statutes. The issue of negligence and due care therefore had to be determined by a finding of where the collision occurred, in the lane of traffic plaintiff was traveling or in the lane of traffic defendant was traveling.
Defendant's first contention is that where circumstantial evidence is relied upon to prove ultimate facts in issue, such facts are not proven unless such circumstantial evidence reasonably tends to prove such facts to the exclusion of any other reasonable hypothesis.
The law applicable in considering a motion for directed verdict and for judgment notwithstanding the verdict, such as were filed in this case and overruled by the lower court, has been stated over and over again by the courts. In Coulson v. Discerns, 329 Ill. App. 28, 66 N.E.2d 728, the court said:
"On a motion for directed verdict for defendant, the evidence is considered in its aspect most favorable to the plaintiff, with all the inferences reasonably deducible, to determine whether there is a total failure to prove an element essential to the maintenance of the cause of action alleged. When so considered, if there is no evidence which tends to prove an essential element of plaintiff's cause of action, a motion to direct a verdict in favor of defendant should be granted. . . . No inference of negligence arises from the happening of an automobile accident. . . . The existence of a certain fact cannot be reasonably inferred from the evidence when the existence of another fact inconsistent with the first can be inferred from the same evidence with equal certainty."
In McGregor v. Reid, Murdoch & Co., 178 Ill. 464, 53 N.E. 323, the court in stating the above rule and the court's duty in applying it said:
". . . all just inferences to be drawn from it in appellant's favor, must be conceded to him. . . ."
"The credibility of the witnesses, the weight of the testimony, the drawing of the inferences of fact from facts proved, were all questions of fact for the jury to pass upon, and not for the court to decide."
In Devine v. Delano, 272 Ill. 166, 111 N.E. 742, the Supreme Court stated:
"If there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, a verdict should not be directed. . . . There was no witness to the accident, and hence the question whether deceased was knocked off by the post depends upon the inferences to be drawn from the testimony. Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. . . . A greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts. . . ."
In Hurst v. Madison Coal Corporation, 201 Ill. App. 205, it was said:
"It (negligence) may be proven by circumstantial evidence. If such evidence is sufficient in the eyes of the law to fairly warrant a finding that it exists a verdict based on it will not be set aside on appeal because it is not supported by positive proof. It is for the jury to determine that fact from the evidence. Negligence or proximate cause are not questions of law, ...