Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. JOHN S. PETERSEN, Judge, presiding.
Reversed and remanded with directions.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The plaintiff, Marion Hanson, brought this action against Calvin Darby, Ronald H. Blomberg, Omar Bakeries, Inc., and John Rauch, defendants, to recover for personal injuries which she sustained in an automobile accident on January 29, 1965. The defendant Blomberg was dismissed out of the case at the close of all the evidence. The jury returned verdicts in favor of the defendants, Omar Bakeries, Inc. and John Rauch; it also returned a verdict in favor of the plaintiff and against the defendant Darby and assessed damages in the sum of $10,000. The trial court subsequently granted a judgment notwithstanding the verdict in favor of the defendant Darby (herein called Darby), and the plaintiff appealed from the judgment notwithstanding the verdict.
Under Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967), a judgment notwithstanding the verdict may be entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. The main question presented for our review is whether the evidence in this case was such, that under the Pedrick rule the trial court could properly enter a judgment for Darby, notwithstanding the verdict to the contrary.
The plaintiff and Darby are now married: at the time of the injury they were not. On Friday, January 29, 1965, Darby had worked all day part of the time at his employer's plant in Plano and the remainder in Chicago. He returned to the plant late in the afternoon, and about 6:30 p.m., he left the plant in Plano and drove to Sandwich where the plaintiff resided. He picked her up at her home shortly after 7:00 p.m. and they stopped at a tavern at the edge of Sandwich. The plaintiff and Darby had a dinner engagement with another couple in Plano.
Both the plaintiff and Darby testified that each of them had two drinks during the period of time while they were at the tavern in Sandwich. They left the tavern about 8:30 p.m., and proceeded east on Route 34 toward Plano. The weather was extremely cold and the night was dark, but the visibility was good and the highway was clear. Snow was on the ground and on the shoulders of the highway, but not on the highway proper.
Darby proceeded east on Route 34 a two-lane concrete highway, which is fairly level and has wide shoulders. The highway at the point in question has no curves or hills to impair visibility. The accident happened approximately one mile and a half east of Sandwich. The Darby car struck the rear of an Omar Bakeries truck, which was, or had been traveling in the same direction and in the same lane of traffic as the Darby car. The truck, in turn, struck the rear of the Blomberg car, which was also traveling in the same direction and in the same lane of traffic.
Darby testified that he was traveling at about 45 to 55 miles per hour and could see between 60 and 80 feet ahead of him with his lights on dim; that he was alternating his lights between dim and bright because of the oncoming traffic; that at no time had he gone off the highway and onto the shoulder of the road, and that he did not see the Omar Bakeries' truck until he was about 60 to 80 feet behind it. He stated that the truck was not moving, but was standing on the highway, and that he could not see any lights on the back of it. He speculated that no lights were visible that they were either off or covered with dirt. He did not recall whether or not he had time to apply his brakes.
Generally, the testimony of the plaintiff confirmed that of Darby. She stated that she believed the truck was stopped on the highway; that she didn't see any taillights on the back of the truck, although she was able to determine its color; that she didn't recall that Darby drove off the highway at any time prior to the accident, and that she felt the defendant was driving in his usual manner.
A disinterested witness, who had been proceeding in the opposite direction westerly and who was about even with the three vehicles at the moment of impact, stated that he had been traveling at about 55 miles per hour; that he had seen the headlights of the three vehicles which were proceeding in an easterly direction as they approached him, and that, from his observations, the first two vehicles were fairly close. He stated that, as he was watching these approaching cars, the headlights of the third car, at one point, moved out beyond those of the other two vehicles, which indicated that this third car was on the shoulder of the highway. At this time, cars were also about one-eighth of a mile ahead of him traveling westerly. It was his recollection that the taillights on the truck had been broken when he observed the damage to the truck after the accident.
A state trooper who investigated the accident stated that tracks from the Darby car were visible and could be traced to the ditch where the car stopped; that from these tracks he observed that the car had, prior to the accident, gone off the highway onto the shoulder for about 264 feet, and that these tracks were visible in the snow on the shoulder. He also testified that he was then able to follow the tracks on the pavement in the light frost; that the car, after coming back on the highway, remained on it for approximately 66 feet, then went off the highway and into the ditch on the other side of the highway; that it was within this 66 feet that the accident occurred and the debris was on the highway.
The trooper stated that Darby did not talk to him, but that he saw Darby at the scene of the accident and at the hospital that evening; that based upon his observations, Darby was intoxicated. Darby was examined at the hospital but was not hospitalized.
The defendant Blomberg was driving immediately ahead of the Omar Bakeries' truck. He and Rauch (the driver of the truck) were returning the truck to its garage. Blomberg testified that at the time in question, both his car and the truck were traveling approximately 40 miles per hour. Blomberg and Rauch both testified that the truck had three lights one low and near the rear fender, and one on each side of the back of the truck. Rauch stated that he was driving the truck about 50 to 80 feet behind the Blomberg car; that he first observed the headlights of the Darby car in his rearview mirror when they were approximately a half mile to a mile behind him; that after the accident the right upper taillight of the truck was still burning, and that there was no dirt on the back of the truck.
Another witness, who at the time of the accident was the garage foreman for Omar Bakeries but at the time of the trial was no longer employed by it, testified that the truck in question had been rebuilt just prior to the accident; that the engine, brakes and lights had been repaired; that it had been repainted and decals placed on the truck. He further testified that the color of the truck was red and white the basic color being red; that three taillights were on the rear on the truck, and that he knew that this particular truck was clean when it went out on its route the morning in question.
Several areas of dispute are readily apparent from the brief summary of the testimony elicited at the trial. While Darby denied that the car he was driving went off the highway at any time prior to the accident, he asserted that the truck had no taillights that were visible to him and that it was not moving at the time of the collision. Other witnesses, some of whom were totally disinterested, testified that the Darby car did in fact go off the highway prior to the accident; that the truck was moving at the time of the impact, and that the truck had taillights that were operable and burning.
In reference to these matters, item by item, we first consider the testimony on the issue of whether the car driven by Darby went off the highway prior to the accident. His denial of this is supported by the testimony of the plaintiff. However, her testimony when viewed in its entirety, indicates that she was not particularly concerned about observing the manner in which the car was being driven. She was or had been, changing from shoes to boots, and at the time, she and Darby were busy talking. She ...