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Mcmanus v. Feist

NOVEMBER 3, 1966.

MARY GERTRUDE MCMANUS, PLAINTIFF-APPELLANT,

v.

BERNARD FEIST, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McLean County; the Hon. WALTER A. YODER, Judge, presiding. Judgment for plaintiff in specified sum affirmed.

TRAPP, P.J.

Plaintiff appeals from a judgment in the sum of $750 entered upon the verdict of a jury.

Plaintiff contends that the trial court should have allowed her motion, made at the close of the evidence, to direct a verdict upon the issue of liability, and to consider the question of damages only, and that the trial court erred in failing to allow plaintiff's post-trial motion and grant a new trial on damages only for the reason that the verdict of the jury was against the manifest weight of the evidence and "could not have included all elements of damage."

Briefly, plaintiff was riding in the right front seat of an automobile driven by her husband as it proceeded north on U.S. Route 51 at a place south of Bloomington. The car in which the plaintiff was riding had entered a 50-mile speed zone and was being slowed by "touching the brakes" as the driver of a car in front of it was making hand signals for a left turn. Plaintiff's husband testified that just prior to the collision his automobile was moving slowly, but he could not say that it was stopped. Defendant testified that he saw plaintiff's automobile and that he slowed his car by reason of having entered a posted speed zone; that he observed the plaintiff's car slowing down and that he applied his brakes as soon as he saw the brake lights of plaintiff's car. The only testimony of defendant's speed is that he was travelling 30 to 35 miles an hour as he applied his brakes at a distance of 3 or 4 car lengths behind plaintiff's car. Plaintiff's husband testified to observing some tire skid marks, but these were not connected with defendant's automobile. Jackson v. Gordon, 37 Ill. App.2d 41, 184 N.E.2d 805.

An immediate proposition submitted by the plaintiff is that the trial court erred in denying plaintiff's motion at the close of all the evidence to direct a verdict upon the issue of liability, it being argued that there is no evidence of plaintiff's contributory negligence and that the defendant was, therefore, liable as a matter of law. Plaintiff submits that such should have been done under the authority of Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461. We understand that such opinion holds that it was proper, under the facts in that case, to direct a verdict upon the issue of contributory negligence on the part of the plaintiff, but that it does not hold that a verdict upon liability should be directed. See Morella v. Melrose Park Cab Co., 65 Ill. App.2d 175, 212 N.E.2d 106; Pertolanitz v. Chicago Transit Authority, 44 Ill. App.2d 256, 194 N.E.2d 501.

[1-3] On a motion to direct a verdict the court considers the evidence and its reasonable inferences in the light most favorable to the party against whom the motion is directed, and may not consider conflicts in the evidence, its weight, or the credibility of the witnesses. Battershell v. Bowman Dairy Co., 37 Ill. App.2d 193, 185 N.E.2d 340; Freeman v. Chicago Transit Authority, 50 Ill. App.2d 125, 200 N.E.2d 128. In order that a verdict upon liability may be directed the facts must be susceptible to but one interpretation and it is improper to direct a verdict where there is a conflict in the evidence. Freeman v. Chicago Transit Authority. In that case the defendant also testified to a sudden stop made by plaintiff's vehicle. As here, the defendant testified to applying his brakes immediately upon seeing the brakes' lights on plaintiff's car. Upon this issue of liability, the jury and not the court weighs the contradictory evidence and the inferences therefrom, judges the credibility of the witnesses and draws the ultimate conclusions of fact. Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275. The trial court's ruling upon the motion was proper.

Plaintiff contends that the damages under the verdict are so inadequate as to indicate that the jury made a compromise of damages against liability, or that it, the jury, overlooked elements of damages, and the trial court erred in refusing to grant plaintiff's post-trial motion and give a new trial on damages only.

Where it is concluded that the verdict was a compromise of damages with liability, the trial court is not authorized to grant a new trial upon damages only. Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275; King v. City of Chicago, 53 Ill. App.2d 484, 202 N.E.2d 839.

Upon the issue of the adequacy of the damages, the evidence is that the plaintiff sustained soft tissue injuries which, in its manifestations at the time of the trial limited the rotation of the head upon the neck and limited or inhibited the tilting of plaintiff's head toward the right. This condition, under the evidence, had persisted from the time of the collision in August, 1962, to the time of the trial. An orthopedic specialist testified that, currently with the trial, there was marked muscle spasms of the left cervical and trapezius muscles with limitation of the rotation of the right arm in several aspects. It was the doctor's opinion that the injuries were permanent. At the time of the injury plaintiff was 67 years of age. The treatment prescribed consisted of muscle relaxants with rest. Since the time of the injury plaintiff has done very little housework and is described as suffering discomfort while riding in an automobile. The evidence as to the amount of expense incident to care and treatment for the injuries sustained shows that the sum of $208 was expended.

Plaintiff contends that certain authorities require the conclusion that this verdict reflects a compromise by the jury as between liability and damages. In Kinsell v. Hawthorne, 27 Ill. App.2d 314, 169 N.E.2d 678, and Pertolanitz v. Chicago Transit Authority, 44 Ill. App. 256, 194 N.E. 501, counsel conceded that the verdict represented a compromise by the jury as between liability and damages. These cited authorities are not applicable to this case.

In another series of opinions, Luner v. Gelles, 314 Ill. App. 659, 42 N.E.2d 313, and Browder v. Beckman, 275 Ill. App. 193, the amounts of the respective verdicts were simply equal to the amounts of the special damages and out-of-pocket expense, while in Stroyeck v. A.E. Staley Mfg. Co., 26 Ill. App.2d 76, 167 N.E.2d 689, the verdict for $100 was less than one-third of plaintiff's out-of-pocket expense. These verdicts were reversed upon the hypothesis that they demonstrated that the jury had compromised upon the issues of liability and damages. We do not believe that this case comes within the theories expressed in these cases.

While it appears here that the jury might very well have awarded a larger verdict under the evidence in this case, nevertheless, this verdict was greater than the out-of-pocket expense, so that we must conclude that it comes within the orbit of those authorities which hold that fixing damages is the province of the jury. Ward v. Chicago Transit Authority, 52 Ill. App.2d 172, 201 N.E.2d 750. There the verdict was for $1,000 with special damages established in the sum of $457, together with evidence that plaintiff had lost his prior employment. That judgment was affirmed, there being no evidence of passion or prejudice on the part of the jury. See also Giddings v. Wyman, 32 Ill. App.2d 220, 177 N.E.2d 641, where the facts of the collision, the injuries sustained and the verdict awarded were quite similar to this case and judgment was sustained upon appeal. Plaintiff cites Freeman v. Chicago Transit Authority, 50 Ill. App.2d 125, 200 N.E.2d 128, but that opinion expressly points out that a new trial was awarded not because the verdict was in an inadequate amount, but because the jury finding upon a special interrogatory was inconsistent with the general verdict.

Plaintiff further urges that the amount of the verdict demonstrates that the jury failed to consider the proper elements of the damages suffered by the plaintiff, pointing out that the verdict seemed inadequate as to the factors of pain and suffering testified to by the plaintiff, and to the fact that she was deprived of the pursuit of her hobbies. Plaintiff's instruction upon the element of damages hereinafter discussed would seem to include these elements and, again, there is ...


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