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Bartolomucci v. Clarke

JUNE 8, 1965.

DARIO BARTOLOMUCCI, PLAINTIFF-APPELLEE,

v.

CHESTER L. CLARKE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Sangamon County; the Hon. HARDIN HANKS, Judge, presiding. Reversed and remanded with directions. SMITH, P.J.

Rehearing denied July 13, 1965.

Plaintiff's suit for damages arising out of an automobile accident with the defendant resulted in a jury verdict in favor of the defendant. The trial court set aside this verdict and the judgment entered thereon and entered a judgment notwithstanding the verdict in favor of the plaintiff on the question of liability and directed a new trial on the damage issue only. Defendant appealed to this court. Plaintiff's motion was allowed to dismiss the appeal as premature. The cause was redocketed in the trial court. The court then granted plaintiff's motion that a conditional order for new trial on all issues be granted in event that the prior judgment non obstante veredicto is reversed, set aside, or vacated on appeal. This conditional order was based upon the ground that the verdict of the jury was against the manifest weight of the evidence. The cause was then tried on the issue of damages only before a jury with verdict and judgment for $27,000. From these rulings, the defendant now appeals and asks that the judgment entered on the original jury's verdict be reinstated and for such other relief as justice may require.

Our first consideration must be directed to the propriety of the judicial interment of the first verdict of the jury by the allowance of plaintiff's motion for judgment notwithstanding the verdict on the question of liability. This requires a look at the evidence. In doing so, it is not our function to weigh the evidence, determine its preponderance or pass upon the credibility of the witnesses. Eggimann v. Wise, 41 Ill. App.2d 471, 191 N.E.2d 425. Neither this court nor the trial court may determine as a matter of law what is ordinarily a question of fact unless it can be said that all reasonable minds would reach the same conclusion from the evidence and its reasonable inferences. Osborne v. Redell, 22 Ill. App.2d 193, 159 N.E.2d 841. Be it otherwise, a judgment non obstante veredicto lacks substance and is inappropriate.

Undisputed facts are that the accident took place about 5:00 p.m. on a clear, dry day in July on a two-lane North and South highway; that plaintiff, driving alone in his white Pontiac convertible, was proceeding Southward; that the defendant, also alone, was driving his Chevrolet pulling a two-wheel trailer weighing about 1310 pounds in the same direction; that the right rear of the trailer struck the rear end of the Pontiac; that defendant's car laid down skid marks for 35 feet before the impact and 108 feet thereafter; crossed the northbound lane and came to rest on the east side of the highway; the Pontiac traveled a distance of 106 feet and came to rest against a tree on the west shoulder of the highway, and that the impact occurred some 200 feet below the crest of a hill over which both parties had passed.

Plaintiff and defendant were the only occurrence witnesses. Plaintiff testified that he was driving south at about 25-30 miles per hour, reached the crest of the hill, saw a semitrailer in front of him, slowed down so that he trailed it 12-15 feet, heard the screech of brakes, looked into his rear-view mirror, saw the defendant's car behind him weaving from side to side and then felt the impact. He further testified that the traffic was light and that he was about 200 feet down the slope when he looked in the mirror and that "I at no time passed any cars in my lane of travel" from the time he entered this highway some distance back.

Defendant testified he approached the crest of the hill at about 35 miles per hour; saw some traffic ahead of him; a white object popped up in front of him; he applied his brakes and pulled sharply to his right; that he did not know whether a car passed him; that he had been with his father that afternoon at some taverns; that from about 3:30 p.m. to 5:30 p.m. had 4 to 8 shots of whiskey in a 7-up mix; that he did not feel the drinks, was not sleepy and was wide awake.

The investigation trooper testified as to skid marks and that he "could detect alcohol" on defendant's breath. Defendant's mother testified that defendant left their motel with the trailer in tow to pick up his wife; that she "observed Chester and his eyes were clear. His movements were ordinary movements. He didn't stagger. He wasn't thick talking. In my opinion, he was not under the influence of alcohol at the time I saw him . . . to my knowledge he was sober. I would swear he was sober."

Mr. and Mrs. George D. Baker were in the fourth car behind the defendant's car as they started up the hill. Both testified that plaintiff passed them and the other three cars and pulled in behind the defendant's trailer. Plaintiff then at or near the crest of the hill pulled out again and passed the defendant. Neither saw the actual collision — both heard the crash. Mr. Baker testified he could see the back end of the trailer over the hill after plaintiff passed the defendant and "it seemed like a second or two . . . that I heard a loud noise banging." Mrs. Baker testified that she heard the crash "right away as soon as he passed."

The officer further testified that "as far as he could determine the defendant's trailer struck the plaintiff's car at an angle and that He [defendant] told me he had come from his parent's place at the motel to pick up his wife and that he was going back to camp. I can't remember whether he said that evening or the next morning. . . . When I talked to Mr. Clarke at the scene he was courteous."

[3-5] That the trial court may direct a verdict in proper cases on a certain issue or issues or submit the case to a jury on the question of damages only is no longer debatable. Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461; Betzold v. Erickson, 35 Ill. App.2d 203, 182 N.E.2d 342; Ceeder v. Kowach, 17 Ill. App.2d 202, 149 N.E.2d 766. In Lowe v. Gray, 39 Ill. App.2d 345, 350, 188 N.E.2d 890, 892, the circumstances under which this may be done are rather concisely set forth as follows:

"In the case of Piper v. Lamb, 27 Ill. App.2d 99, 169 N.E.2d 164, this court said: `The general rule is that negligence and contributory negligence are questions of fact for the jury, and so long as a question remains whether either party had performed his legal duty or has observed that degree of care imposed upon him by the law, and determination of question involves weighing and consideration of the evidence, the question must be submitted as one of fact. Peterson v. Hendrickson, 335 Ill. App. 223, 81 N.E.2d 266. Even where the facts are admitted or undisputed but where a difference of opinion as to the inference that may legitimately be drawn from them exists, the questions of negligence and contributory negligence ought to be submitted to the jury — it is primarily for the jury to draw the inference. Denny v. Goldblatt Bros., Inc., 298 Ill. App. 325, 18 N.E.2d 555; Cloudman v. Beffa, 7 Ill. App.2d 276, 129 N.E.2d 286; Pantlen v. Gottschalk, 21 Ill. App.2d 163, 157 N.E.2d 548. In the case of Cloudman v. Beffa, 7 Ill. App.2d 276, at page 284, 129 N.E.2d 286, the court said that as long as a question remains whether either party had observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of the evidence, the question must be submitted as one of fact.'"

The circumstances cited in Lowe do not appear in the record before us. There is a conflict in the testimony as to whether plaintiff passed anybody just prior to the accident; a clear conflict as to whether the defendant was under the influence of intoxicating liquors which contributed to the accident; a clear conflict as to whether plaintiff cut in front of the defendant, and a clear question as to the proximate cause of the accident. The determination of the conduct of both parties at and immediately before the accident involves a weighing of the evidence, the acceptance or rejection of certain testimony and the credibility of the witnesses. This is the judicial vineyard in which the jury properly labors under our system. We think it clear that reasonable minds might well draw different inferences and different conclusions from the evidence in this case. Under such circumstances, a court must stand silently on the sidelines.

[6-10] Plaintiff contends that all liability questions are resolved by judicial admissions of the defendant in his statement to the police officer at the scene of the accident. The officer testified as follows:

"He told me that he came over the overhead and saw this traffic in front of him slow. He started to stop himself and couldn't get stopped and swerved out to avoid hitting the car in the rear. And, of course, he lost control then and went where ...


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