Appeal from the Circuit Court of Cook County; the Hon. L.L.
WINN, Judge, presiding. Judgment reversed and cause remanded with
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT. This is an appeal by plaintiffs, Grace and Roger Freeman, from a jury verdict in their favor of $2,500 each entered in the Circuit Court of Cook County on May 25, 1962; and from an order denying the plaintiffs a new trial entered on November 9, 1962. Defendant, Chicago Transit Authority, also appeals from an order entered on November 9, 1962, denying its motion for judgment notwithstanding the verdict and setting aside the special finding of the jury in its favor as against the manifest weight of the evidence.
Plaintiffs contend: 1. that the conduct of defendant's counsel deprived them of a fair trial; 2. that the jury was confused as was evidenced by their returning a special finding and a general verdict inconsistent with one another, and, therefore, a new trial should have been granted; 3. the verdicts were grossly inadequate.
Defendant on cross-appeal maintains: 1. the court was without power to set aside the special finding in defendant's favor since no motion to set aside the finding was made in the post-trial motion pursuant to section 68.1(2) of the Civil Practice Act (Ill Rev Stats c 110, § 68.1(2)); 2. where a special finding is inconsistent with a general verdict section 65 of the Civil Practice Act (Ill Rev Stats c 110, § 65) demands that the special finding control and that judgment be entered thereon.
This is a personal injury case arising out of a bus-car rear-end collision at a complicated intersection in the City of Chicago on the evening of November 12, 1959, at about 10:00 p.m. Plaintiffs, Roger and Grace Freeman, were proceeding in a northwest direction on Broadway in the inside lane in their 1951 Ford. Roger was driving. The streets were wet following a snowfall but there was no snow or slush at the intersection where the accident occurred. Defendant's bus was following plaintiffs' car at a distance of approximately forty feet at from 15 to 20 miles per hour.
The accident occurred in the vicinity of the intersection of Pensacola and Broadway with Sheridan. Looking northwest on Broadway, Pensacola is a one-way street to the east perpendicular to Broadway and ending there. Sheridan is a north-south street cutting across Broadway and intersecting the east curb of Broadway about 90 feet from the north curb of Pensacola. The building line on the east side of Broadway between Pensacola and Sheridan measures 58 feet. There is a stoplight on the southeast corner of Pensacola and Broadway and another on the west side of Broadway approximately 98 feet northwest of the curb intersection with Sheridan Road. These two traffic signals work in identical patterns. There were other lights in the center of Sheridan at a point equal to an extended west building line of Pensacola; in the center of Sheridan north of the intersection of Broadway and Pensacola; and four lights at the intersection of Broadway and Montrose approximately 248 feet northwest of the Sheridan intersection measured on the west side of Broadway. The distance along the east side of Broadway from Montrose southeast to the intersection with Sheridan was between 75 and 100 feet. For purposes of this case we are only interested in the two lights on the southeast corner of Pensacola and Broadway and on the west side of Broadway, which lights direct Broadway traffic across the Broadway-Sheridan intersection. Broadway is a four-lane road approximately 38 feet from curb to curb, Sheridan is a four-lane road approximately 40 feet from curb to curb.
The testimony of the parties and all witnesses establishes that both Freeman and defendant's bus passed through a green light at the southeast corner of Pensacola and Broadway. After passing this light Freeman testified that he noticed the light on the west side of Broadway beyond the Sheridan-Broadway intersection was changing from green to amber. He put his foot on the brakes and began to slow down. At this time his car was struck in the rear by the CTA bus. It is disputed whether the collision occurred prior to the entrance of Freeman's car into the Sheridan intersection.
Grace Freeman testified that she noticed the light on the left was turning to caution as the car entered the intersection of Broadway, Sheridan and Pensacola. She heard no horn or squeal of brakes.
Arthur Menda was driving parallel with plaintiffs on Broadway in the outside lane. He testified that he began to stop because the light on the west side of the street was red. Plaintiffs' car was also slowing for a stop when it was hit in the rear by the bus. Menda testified that he passed the intersection possibly three times a day and always watched for both lights.
Raymond Jenkins, operator of defendant's bus, testified that plaintiffs' car stopped suddenly and the brake lights were on. He applied his brakes, but skidded to the left and hit the car. He didn't look at the light on the west side of Broadway, but knew that it worked simultaneously with the one on the southeast corner of Pensacola and Broadway. Jenkins believed that the amber light at this intersection was long to allow traffic which had passed the green light at the southeast corner of Pensacola and Broadway to safely cross the Sheridan intersection. Jenkins was observing the light at Broadway and Montrose when he was a half bus length beyond Pensacola. When the light at Montrose is red and yellow, the light at Pensacola and Broadway and the light on the west side of Broadway was amber and green.
Robert Osgoodby, a passenger on the bus, testified that Freeman's car came to a stop in the center of the intersection; stopped in the middle of northbound traffic. The bus tried to avoid the accident but could not. Osgoodby did not notice the status of the traffic lights. He placed the bus in the right hand or outside lane.
Pauline Gesner, a passenger on the bus, testified that the Freemans' car was standing still before the driver began to apply his brakes, the bus skidded to the left and there was contact between the bus and the car. She placed the accident in the intersection.
George Leahy, a police officer, who arrived at the scene following the accident, testified that "traffic passing a green light at Pensacola would have a right to proceed up until the stop-and-go light and proceed across, if he has the green light at Pensacola. The next stop light that governs him would be at Montrose." On recross-examination he stated further: "whether things were normal would depend upon whether or not you are approaching Pensacola and the light changes in front of you, it is possible it could turn red by Sheridan Road. If the lights are green at Pensacola you are allowed to proceed through. You can proceed until you get to Montrose if the lights are green." On re-redirect-examination he stated: "As one going northwest on Broadway and crossing Pensacola with a green light he sees a red light on the reflector, he must stop for Sheridan Road. If the light is red he's got to stop." On re-recross-examination he stated:
"When the light on the southeast corner of Pensacola is green, the light on the west side or left hand side of the street is green also. They operate the same. As I said before, it is possible that after a man goes through this light that could change to red and he must stop at the intersection. There is a hesitation light that changes in that he can proceed until he gets to Montrose, but it would depend upon the amount of speed at which he was traveling. If the light is red he must stop at the intersection of Sheridan. There is a hesitation between the change of lights because of the space between Pensacola and Sheridan. . . ."
At the close of all the evidence plaintiffs moved for a directed verdict. They preserved the motion in the post-trial hearing and on appeal they especially urge that a verdict should have been directed in their favor. Defendant also moved for a directed verdict at the close of the evidence. On a motion to direct a verdict the court may not consider any conflicts in the evidence or its weight or preponderance or the credibility of witnesses, but may consider only that evidence which is most favorable to the party against whom such a motion is directed, together with all reasonable inferences that may be drawn therefrom. Battershell v. Bowman Dairy Co., 37 Ill. App.2d 193, 197, 198, 185 N.E.2d 340 (1962). Even where both parties move for a directed verdict the law is settled that only a question of law is presented and the court may not weigh the evidence. Wolf v. Chicago Sign Printing Co., 233 Ill. 501, 503-506, 84 N.E.2d 614 (1908); 3A Nichols § 3509 (1961).
In the case of Ceeder v. Kowach, 17 Ill. App.2d 202, 149 N.E.2d 766 (1958), a rear-end collision case, defendant was found negligent as a matter of law since he should have foreseen that plaintiff would probably have to stop for a red light; that traffic on adjoining lanes would prevent turning out of the way of plaintiff's car; that he would have to apply his brakes; that his car would probably skid on the wet pavement if the brakes were applied too suddenly; and that if he were going too fast or was not far enough behind he would collide with plaintiff's car. The court said at 204:
". . . The fact that his car skidded into plaintiff's car, even though the pavement was wet, leaves room for no other inference, we think, except that under the circumstances defendant `was ...