Appeal from the Circuit Court of Lake County; the Hon. THOMAS
J. MORAN, Judge, presiding. Affirmed in part, reversed and
remanded in part with directions.
Rehearing denied February 18, 1965.
On August 23, 1961, plaintiff Bonnie Klatt commenced an action against Commonwealth Edison Company, a corporation, hereinafter referred to as "defendant Edison," and Margaret V. Klatt, administrator of the estate of Herbert B. Klatt, deceased, hereinafter referred to as "defendant administrator," to recover damages for personal injuries received in an automobile collision. In her complaint she alleged that at the time of the collision she was a guest passenger in an automobile being driven by Herbert B. Klatt, deceased, her father, who at the time was an agent or servant of defendant Edison. Separate answers were filed by each defendant. The answer of defendant Edison denied that the deceased was its agent at the time of the collision and denied that he was operating the automobile within the course of his employment. In addition defendant Edison filed a third party complaint alleging in substance that the liability, if any, of defendant Edison was predicated upon the doctrine of respondeat superior so that if defendant Edison is liable to plaintiff the defendant administrator is liable to defendant Edison. Issues being joined on these pleadings, the cause was submitted to a jury. The jury returned a verdict in favor of plaintiff and against both defendants and fixed the damages at $85,000. Thereupon the jury also rendered a verdict on the third party complaint as follows:
"If you find in favor of the defendant, Commonwealth Edison Company, on the complaint of the plaintiff, Bonnie Klatt, you will have no occasion to use this form of verdict; if you find against the defendant, Commonwealth Edison Company on the complaint of the plaintiff, Bonnie Klatt, the Court directs that you will then return the following verdict inserting in the blank space provided the same amount that you have found against Commonwealth Edison Company in favor of Bonnie Klatt if you have so found."
"We the jury find in favor of the third party plaintiff, Commonwealth Edison Company, and against the third party defendant, Margaret V. Klatt, administrator of the estate of Herbert B. Klatt, deceased, and assess the damages of the third party plaintiff, Commonwealth Edison Company, in the amount of $85,000.00."
Judgment was entered upon both of these verdicts. Separate post-trial motions were filed by each defendant for a judgment notwithstanding the verdict and for a new trial. The trial court heard arguments on the motions and filed a rather extensive opinion covering the major points raised by the defendants on their post trial motions. The trial court denied both post trial motions for judgment notwithstanding the verdict but granted both motions for a new trial. The sole ground upon which the motions for new trial were granted, as shown by the court's opinion, was that the trial judge was of the opinion that he had committed error with respect to testimony of one of the witnesses. Upon petition to this court we granted leave to appeal from the order granting a new trial. Thereupon defendant Edison filed a cross appeal appealing from the order granting a new trial on its third party complaint and also appealing from the order denying its motion for judgment notwithstanding the verdict. Defendant administrator also filed a cross-appeal, appealing from the order denying its motion for judgment notwithstanding the verdict.
The issues presented to this court for decision require a rather extensive analysis of the facts in this case. The record in the case discloses that Herbert B. Klatt was employed by defendant Edison as a division field agent working out of the Dixon office with 40 years of service. The territory handled by the Dixon office covers Stephenson County, of which Freeport is the county seat, but does not cover Winnebago County, of which Rockford is the county seat. The work of Herbert B. Klatt consists of traveling about obtaining right of ways, getting permission to trim trees and kindred matters. He was furnished with an automobile by defendant Edison to be used in the performance of his duties. He was pretty much his own boss as to what he did and was given considerable leeway in the manner of performing a particular job. His normal working day ended at 5:00 p.m. and if he was out in the field during the day and finished his work prior to 5:00 p.m. he was expected to return to the office until that time. On the day of the occurrence which was August 26, 1959, Klatt checked out of the Dixon office at about 9:00 a.m. to go to Freeport. On this day defendant Edison had two engineering projects going on in the Freeport area. One was a road improvement project east of Freeport on Route 20 and another was northeast of Freeport near the town of Dakota, all in Stephenson County. The main traveled highway from Dixon to Freeport is a north and south highway known as Illinois 26 and the distance is about 37 miles. Rockford is east of Freeport and the two cities are connected by U.S. Route 20. This distance is about 28 miles. There is also a highway extending southwest along the Rock River from Rockford to Dixon known as Route 2 and it was on this highway that the collision in question took place. The distance from Rockford to Dixon is approximately 41 miles on Route 2.
On the day in question the plaintiff was a student in nurses training at the Rockford Memorial Hospital in Rockford. During the week she stayed in the nurses residence and on days off or vacations she resided with her parents in Dixon. At about 2:15 p.m. Herbert B. Klatt called for his daughter at the dormitory to take her home for a visit. By prearrangement he had agreed to pick her up if he had business in that area. Leaving Rockford they took Route 2 toward Dixon. The collision occurred at about 3:00 p.m. between the city of Oregon and the city of Dixon about two and a half to three miles north of Dixon.
The physical conditions existing at the time of the occurrence are important. The collision occurred on a long sweeping curve. As one proceeds South on Route 2 and enters the curve, the curve is from 1,500 to 1,600 feet long and to a person operating an automobile in a southerly direction the curve curves to the driver's right. The highway around the curve is banked so that the east side of the highway is approximately 1 foot higher than the west side. Along the west side of the curve there had been constructed a gutter which was about 3 feet wide and 6 inches deep and extended all the way around the curve. From the west edge of the highway there was a section of gravel, then a grassy section which sloped into a drainage ditch. The weather conditions were very bad at the time of the occurrence. It was raining very hard, visibility was very poor and cars were using their headlights. Water was flowing on the highway around the curve from east to west and the gutter was filled with water. The car in which plaintiff was driving entered the curve at a speed of from 50 to 55 miles per hour and after it had entered the curve it suddenly partially left the highway so that the two right wheels were on the paved portion of the highway. The car continued in this position for a distance of approximately 1,000 feet without diminishing its speed, and was bouncing up and down quite a bit. Suddenly the car came across the highway to the east side in a diagonal course where it was struck broadside by an oncoming car proceeding north on Route 2. Behind the car which struck the car in which plaintiff was riding was another car being operated by a gentleman known as James Rice, who testified for plaintiff and whose car was also struck as an aftermath of the initial collision. As a result of this collision the plaintiff was very seriously injured and her father subsequently died from the injuries which he received. The plaintiff could not remember anything which occurred after she and her father left Oregon.
At the outset we call attention to the well established rules governing the consideration by this court of a petition for leave to appeal from an order granting a new trial. In Wettaw v. Retail Hardware Mut. Fire Ins. Co., 285 Ill. App. 394, 2 N.E.2d 162, 163, the court pertinently observed:
"That the act (Section 77 of the Civil Practice Act) is designed to promote justice, and to prevent a verdict, warranted by the record and justified by the evidence, from being set aside and lost to the party who was fairly entitled thereto, and such litigant forced to undergo the hazards of another trial with its further incidents of delay and expense, does not admit of argument. We think it clear that where a party litigant feels aggrieved at the order of a trial court in setting aside a verdict in his favor, and presents to a reviewing court, upon a petition for leave to appeal from such order, grounds which are reasonably debatable and fairly challenge the propriety of the grant of the new trial, the reviewing court should permit the appeal to be taken. Such an interpretation of section 77 is in consonance with justice and in accord with the evident spirit of the act."
In Hall v. Chicago & N.W. Ry. Co., 349 Ill. App. 175, 110 N.E.2d 654, the court said:
"Section 77 contemplates that the reviewing court will grant a petition for leave to appeal to determine whether the trial court exceeded or abused its judicial discretion. There should and must be some opportunity afforded litigants to have these issues determined; and if petitions for leave to appeal are to be brushed aside on the ground that the order granting a new trial was within the sound discretion of the court, section 77 would accomplish no practical purpose."
In considering the questions presented by this appeal we first consider the matter which was made the basis for the granting of a new trial by the trial judge. A witness by the name of John Groenwald was called as a witness by defendant Edison. Mr. Groenwald was an employee of defendant Edison and on the day in question was operating a company truck. He had come upon the car being operated by Herbert B. Klatt in Oregon, Illinois, where the two cars stopped for a stoplight. Groenwald's truck was right behind Klatt's car at the stoplight. As they proceeded toward Dixon, Groenwald subsequently lost sight of the Klatt car. Apparently, however, he came upon the scene of the collision just shortly after it had occurred. Upon arriving at the scene he parked his truck in the southbound traffic lane and turned on a red light to halt oncoming traffic. He then proceeded up to the point where the damaged cars were located. From that point north, he examined the shoulder on the west side of the highway. The foregoing was elicited from the witness on direct examination by counsel for defendant Edison. Counsel for defendant administrator then proceeded to cross-examine the witness Groenwald. During this cross-examination the following questions and answers appear in the report of proceedings:
"Q. And did you examine the territory around the accident?
A. I did. I walked around the cars to see where it had been hit. I also looked at the shoulder on the other side of the road to see why he got in that position.
Q. You say the shoulder on the other side of the road. Do you mean the other side of the road from where the automobiles were?
A. Yes, from where I found the cars.
Q. That is the low side of the highway, the inside of the curve?
A. The inside of the curve.
Q. And did you look back towards Oregon or back to the south from where the automobiles were?
Mr. Burrell: Is this north?
The Witness: Toward Oregon would be northerly.
Mr. O'Brien: Q. Along the waterway?
A. Yes, I went back to the waterway to where the culvert goes under, where the spillway goes across the highway quite a ways.
Q. Were there any tire marks or tracks on that side of the park?
Mr. Burrell: I object to that. It has to be connected up.
The Court: Well, first he has to find out if there were. He may answer that much. Were there?