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Mesich v. Austin

MAY 5, 1966.




Appeal from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding. Reversed and remanded.


This is a personal injury case arising from the collision of two automobiles at an intersection. At the close of all the evidence the court held that the plaintiff was guilty of contributory negligence as a matter of law and directed a verdict for the defendant. The plaintiff appeals from the judgment entered on the verdict of not guilty.

The autos collided about 7 a.m. on a misty morning at the intersection of 31st Street, an east and west street, and First Avenue, a north and south street, in Riverside, Illinois. There were stop and go lights at the four corners. The plaintiff was on her way to work accompanied by a fellow employee. She was driving her car east on 31st Street and the defendant, who was also on his way to work, was driving south on First Avenue. The plaintiff testified that she was driving 25 miles an hour in the inner lane, that the traffic light was green for eastbound traffic and she looked both ways before she proceeded into First Avenue. Her car was struck on the left side near the driver's seat by the defendant's southbound auto. She lost consciousness and was taken to a hospital. She regained consciousness several hours later and remained in the hospital thirty days.

The defendant testified that the light was green for southbound traffic and that he was approximately one-half way across 31st Street when the plaintiff's car suddenly pulled around others that were stopped and entered the street from the lane closest to the curb. He said he turned his auto practically around in an attempt to avoid hitting the plaintiff's car. He further testified that he remained at the scene for half an hour and the light for southbound traffic remained green all this time. He said he talked with the plaintiff's co-worker and asked her why they had run the red light and that she replied she didn't know but that they were late for work. The defendant's 13-year-old son was riding in the back seat. He was the only occurrence witness to testify. He was not asked about the light but in other respects he corroborated his father's testimony about the plaintiff's car coming around other cars and entering the intersection from the outer lane.

Two police officers of the Village of Riverside arrived at the scene at 7:15 a.m. and remained there three or four minutes before taking the plaintiff to the hospital. They said that the lights at that time were red for eastbound and green for southbound traffic. One officer testified that they had reported that the lights were stuck on red for eastbound and green for southbound traffic at 3:15 a.m. The other said that a report about the lights not functioning properly had been received at the police station at 11 p.m. the night before and that another report came in around 4 a.m. in the morning. He said that he had informed the State police and the Meade Electric Company (a company that had a contract with the State to maintain the traffic lights) about the lights malfunctioning. The general foreman of the Meade Electric Company, however, who was also a defense witness, said he knew of no call to repair the faulty lights, that there was no such report, and if there had been a report his company would have had a record of it.

The plaintiff sued both Meade Electric and Austin. Her complaint was in two counts. The count against Austin charged him with failing to keep a sufficient lookout, failing to yield the right-of-way and driving at an unreasonable speed. The count against Meade charged the company with negligently maintaining the lights. Meade was dismissed from the case before evidence was heard and we do not know the plaintiff's theory against that defendant. It could have been that the lights were out of order by being fixed at green for both east and southbound traffic at the time of the accident, thus inducing both her and Austin to proceed. The plaintiff's insistence that she had the green light indicates that her counts were not inconsistent, but even if they were she had a clear right to plead them in the alternative (Ill. Rev Stats, c 110, § 43(2) (1963)) and if they were inconsistent and had gone to trial the sufficiency of the proof to support each count would have had to be judged separately against a motion for a directed verdict. McCormick v. Kopmann, 23 Ill. App.2d 189, 161 N.E.2d 720 (1959). The same standard in testing the sufficiency of the proof would have had to be applied whether the counts were consistent or inconsistent. We speak of this because the count against the electric company might have been a factor in the trial court's decision to direct a verdict against the plaintiff despite her unequivocal testimony that she had the green light.

In determining whether the plaintiff was contributorily negligent as a matter of law, the testimony favorable to the plaintiff (and in this case that means her own testimony) must be taken as true. It is obvious that the trial court decided it was untrue. In making this determination the court invaded the province of the jury; the truth or falsity of her testimony was for the jury to determine, not the court. Standing alone her testimony was sufficient to sustain a judgment in her favor. The conflicting evidence made the question of contributory negligence one of fact, not of law. If the court was of the opinion that the weight of the evidence preponderated in favor of the defendant (and we do not dispute that it did) it was not for the court to so rule. The court cannot weigh conflicting evidence in a jury trial. The weight to be given evidence, as well as the credibility to be given witnesses, is for the jury to determine.

In intervening as it did in an adversary proceeding before a jury, the court transgressed three firmly established principles of Illinois law:

(1) the testimony favorable to the plaintiff must be regarded as true in determining whether there is any evidence which tends to prove the material elements of the plaintiff's case;

(2) in a jury trial the credibility of the witnesses and the weight to be given their testimony is for the jury to determine;

(3) there should not be a directed verdict if there is any evidence, or reasonable inferences from the evidence, upon which a jury could base a verdict for the party against whom the motion is directed.

These principles have been restated in a great number of cases. Every judge who has sat in a court of review in this State for any length of time has had occasion to repeat one or all of them in his opinions.

In most cases concerning directed verdicts for defendants the reviewing courts have the problem of deciding whether there is evidence in the record, or reasonable inferences to be drawn therefrom, which taken with intendments most favorable to the plaintiff supports his or her claim; for a party cannot be deprived of his right to a jury trial if he has made out a prima facie case. In the present case this problem does not confront us. The plaintiff's claim is supported by direct evidence: her positive testimony.

[11-14] That the plaintiff might have been mistaken does not alter the standard by which her testimony is to be tested. And one cannot read her testimony in the record without being impressed with the sincerity of her belief that the light was green when she approached First Avenue. She saw the light turn green when she was a half-block away and she saw other eastbound cars in front of her cross First Avenue. Her speed was steady and she proceeded in a straight line until she was struck broadside without seeing or hearing any prior warning. She had the right to assume that it was safe to proceed. In Yelinich v. Capalongo, 38 Ill. App.2d 199, 186 N.E.2d 777 (1962), the court stated:

"Control lights are installed to give a preferential right of way to motorists having the green light. Uniform Traffic Act, art III, sec 129, Ill. Rev Stats, c 95 1/2, § 129. One purpose of this statute is to prevent injuries. Persons having the green light may assume the intersecting traffic will stop until the light for them turns green."

The only way we could affirm the judgment of the trial court would be to ignore past decisions and attempt to formulate new standards to be applied to motions for directed verdicts, judging the credibility of witnesses and the preliminary proof required in determining whether a plaintiff has proved the material elements of his case. It has been suggested that the Supreme Court opened the door for different standards in the case of Carter v. Winter, 32 Ill.2d 275, 204 N.E.2d 755 (1965). We do not believe this was done. That case concerned a rear-end collision on a heavily traveled four-lane highway between the automobile of the plaintiff and that of the defendant. The question before the court was whether a verdict should have been directed for the defendant who ran into the plaintiff's auto. The court held that it should have been and that the Appellate Court and the trial court were in error in deciding otherwise, because the plaintiff's own testimony proved him guilty of contributory negligence as a matter of law. The plaintiff testified that he pulled from a side road onto the highway and into the path of the defendant's auto 30 or 40 yards away which was traveling 75 to 80 miles per hour. ...

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