On petition for leave to appeal from an order of the Circuit
Court for the 18th Judicial Circuit, DuPage County, granting a
new trial; the Hon. PHILIP F. LOCKE, Judge, presiding. Reversed
and remanded with directions.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Ada Marie Morella, a minor, by her father and next friend (herein called plaintiff) sued the defendant Melrose Park Cab Company (herein called Melrose) and its cab driver at the time of the accident in question the defendant James C. Brislin (herein called Brislin) to recover for personal injuries sustained when the cab owned by Melrose and driven by Brislin, in which plaintiff was a passenger, collided with an automobile driven by the defendant Ricardo E. Guzman (herein called Guzman) on Lake Street, just east of York Road in DuPage County.
The complaint charged both defendants with concurrent negligence in operating their respective automobiles. The defendants denied the material allegations of the complaint, and the cause was tried before a jury which returned a verdict in favor of plaintiff, and against Melrose and Brislin in the sum of $20,000, and a verdict of not guilty as to Guzman.
Melrose and Brislin filed a post-trial motion for judgment notwithstanding the verdict, which was denied; and for a new trial, which was allowed. The new trial was granted without supporting oral remarks or written memorandum by the trial judge.
The post-trial motion consisted of 81 numbered paragraphs which, when distilled, charged that the verdict was against the manifest weight of the evidence; was excessive; was the result of passion and prejudice and included punitive damages; that the Court erred in the admission and denial of certain testimony; that plaintiff's counsel in an interchange with defendants' counsel, made certain prejudicial remarks; and that the Court erred in giving and refusing certain instructions.
The record indicates that on October 21, 1961, a head-on collision took place on a construction detour on Lake Street, about three blocks east of York Road, shortly after 8 p.m., between a 1954 Buick automobile driven by Guzman and a cab owned by Melrose and driven by Brislin, in which plaintiff was a passenger. At the time and place, the highway was dry; the night dark but clear, and the visibility was good. Guzman was driving east on Lake Street in his lane of traffic at a speed of 30 to 35 miles per hour, and Brislin was driving west on Lake Street at a speed of 45 to 50 miles per hour. The testimony and all physical facts indicated that Brislin was driving in Guzman's lane of traffic at the time and place of the collision.
The plaintiff, at such time and place, was seated in the rear seat of the cab on the right-hand side. Before the accident, her left leg was in good condition. The impact of the collision threw her to the floor of the cab and against the front seat and caused a comminuted fragmented fracture of her left femur extending from her knee joint upwards for about 5 1/2 inches.
The plaintiff's injury was painful. It required the placing of her left leg in a splint and the insertion of a Steinman pin in her left tibia to provide a point from which traction would be applied. Thereupon, plaintiff was placed in traction. Due to angulation, further surgical procedures were required, including the placing of plaintiff in a hip spica cast. Plaintiff left the hospital December 2, 1961, and remained in bed at home until December 12. The cast was removed January 20, 1962, and plaintiff started walking with the aid of crutches in February 1962. She was still limping and her leg was still swollen when the case was called for trial on October 26, 1964. Her hospital and medical expenses totaled $1,841.72 and she missed the second semester of her freshman year in high school due to the injury.
Even though plaintiff filed petition for leave to appeal and abstract of record, and complied with the rules of this Court, no answer to the petition was filed in this Court by Melrose or Brislin. After the petition for leave to appeal was granted, neither Melrose nor Brislin saw fit to file brief in support of the trial court's order granting a new trial. On this state of the record, we would be justified in reversing and remanding this case without consideration of the merits. Ogradney v. Daley, 60 Ill. App.2d 82, 208 N.E.2d 323 (1st Dist 1965); Spears v. Spears, 45 Ill. App.2d 167, 169, 170, 195 N.E.2d 237 (1st Dist 1964); East Side Health Dist. v. Village of Caseyville, 38 Ill. App.2d 438, 442, 187 N.E.2d 534 (4th Dist 1963); Basinski v. Basinski, 20 Ill. App.2d 336, 340, 156 N.E.2d 225 (1st Dist 1959). Such result, however, is not required (Spears v. Spears, supra).
The posture of this case on appeal is unusual: it stands without brief or argument by counsel to support the decision of the trial court (see Ill Rev Stats 1963, c 110, §§ 77(2), 101.30 and 201.22) and without written memorandum by the trial judge stating the reasons for his decision, as permitted by Supreme Court Rule 36(1) (c) (Ill Rev Stats 1963, c 110, § 101.36(1) (c)). We regret the absence of a brief statement of the trial court's reasons for his decision, and we deplore the cavalier attitude of Melrose and Brislin in their failure to support the order of the trial court by either answer or brief, or by both. Such default by counsel places an undue burden on the reviewing court and is unfair to the trial court. Under these circumstances, we have, without the customary assistance of court and counsel, examined the record and considered the law determinative of the issues involved.
Under the evidence above set forth, there can be no question concerning the propriety of the trial court in refusing to grant a judgment notwithstanding the verdict. Even if the inferences to be drawn from the evidence were uncertain as to the negligence of the respective defendants, the contributory negligence of the plaintiff and the proximate cause of her injuries, so that fair-minded men could draw different conclusions, questions of fact, to be decided by the jury, were presented. Dursch v. Fair, 61 Ill. App.2d 273, 282, 209 N.E.2d 509 (2nd Dist 1965); Turner v. Schaeffer, 30 Ill. App.2d 376, 390, 174 N.E.2d 690 (2nd Dist 1961). Also see Zank v. Chicago, R.I. & P.R. Co., 17 Ill.2d 473, 479, 480, 161 N.E.2d 848 (1959); Brown v. McColl, 36 Ill. App.2d 215, 218, 183 N.E.2d 541 (2nd Dist 1962).
The determinative issue herein is whether the trial court properly granted the motion of defendants Melrose and Brislin for a new trial. In Payne v. Kingsley, 59 Ill. App.2d 245, 207 N.E.2d 177 (2nd Dist 1965) at page 252, this Court stated:
"In considering such motion, the trial court may weigh the evidence for the purpose of determining whether the verdict is contrary to the weight of the evidence, and, if the court so finds, a new trial should be granted. Heideman v. Kelsey, 414 Ill. 453, 466, 111 N.E.2d 538 (1953); Hunt v. Vermillion County Children's Home, 381 Ill. 29, 34, 44 N.E.2d 609 (1943); Ardison v. Illinois Cent. R. Co., 249 Ill. 300, 302, 94 N.E. 501 (1911); Lukich v. Angeli, 31 Ill. App.2d 20, 27, 175 N.E.2d 796 (1st Dist 1961); Read v. Cummings, 324 Ill. App. 607, 611, 59 N.E.2d 325 (1st Dist 1945)."
[4-7] The nature and extent of the power of the trial court in ruling on a motion for new trial is stated in Buer v. Hamilton, 48 Ill. App.2d 171, 199 N.E.2d 256 (5th Dist ...