Appeal from the Circuit Court of Cook County; the Hon. DAVID
LEFKOVITS, Judge, presiding. Reversed, with judgment for
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 13, 1969.
Plaintiffs instituted this action to recover for damage to their automobiles allegedly caused by the negligence of defendant in the operation of his automobile. After a bench trial, the court entered judgments of $500 each (the ad damnum) in favor of plaintiffs.
Defendant contends that: (1) the evidence does not support the court's finding as to liability; (2) the trial court abused its discretion in admitting testimony with regard to damages from a witness who was not qualified as an expert; and (3) the evidence on damages does not support the amounts of the judgments.
Plaintiffs called defendant as a witness under Section 60 of the Civil Practice Act. Ill Rev Stats (1965), c 110, § 60. His was the only occurrence evidence, so his testimony in this regard stands uncontradicted. Defendant testified that on the evening of December 7, 1963, he was at a club meeting. After the meeting he went to his car, which was parked 2 or 3 car lengths behind plaintiffs' cars. All three cars were facing west on 48th Street. Lukasik's car was about 15 feet from the corner of Wood Street, and Wazio's car was behind it.
It was 8:20 p.m. when defendant left the meeting and pulled his car out of its parking space, reaching a speed of about 10 miles per hour. Because it was raining, his windshield wipers were on. Defendant was headed west on 48th Street near the corner when a woman, driving north on Wood Street, made a wide right turn *fn1 to go east on 48th Street. Her "highway lights" blinded him. Defendant turned to the right to avoid a head-on collision and, in so doing, hit plaintiffs' cars. He struck the front of Wazio's car and the rear of Lukasik's. The woman's car hit defendant's car in the rear fender when his car was "on an angle." She was driving a Chevrolet, but he didn't get the license number, and he never saw her again.
Wazio's car (a 1957 Chevrolet) was pushed up against a tree, and both sides were damaged. The rear parts of Lukasik's car (also a 1957 Chevrolet) were also damaged.
Defendant knew plaintiffs. After the collision he went back into the meeting hall, told plaintiffs what had happened, and called the police. Defendant was given tickets for negligent driving and for driving too fast for conditions. The policeman (who had not seen the accident) told him that he had also hit a car on the other side of the street, but the witness flatly denied this and testified that other people said it had been damaged previously. (The physical facts indicate a high probability that defendant could not have hit cars on both sides of the street within the short distance of westward movement involved approximately fifty feet.) Defendant pleaded guilty and paid the fine. *fn2
Both plaintiffs testified that they had not seen the collision, but that defendant had come into the club and told them about turning into their cars in order to avoid the woman driver.
As stated in numerous cases, "it must be conceded that there is a burden upon the plaintiff in any case charging negligence, to prove the negligence of the defendant by the greater weight or preponderance of the evidence. The mere happening of an accident does not of itself raise any presumption of negligence on the part of a defendant." Brown v. Boyles, 27 Ill. App.2d 114, 124, 169 N.E.2d 273.
Requiring no citation of authority is the proposition that negligence consists in a failure to exercise the standard of care of a reasonably prudent person under the circumstances of the case. Applying that definition to the evidence here, we can find no proof that defendant acted negligently. There being no contradictory testimony, we must accept the fact that defendant was faced with the alternative of risking life and limb in a head-on collision, or, in its avoidance, causing the property damage which resulted. By making the instantaneous decision which he did, we believe that he observed the standard of ordinary care. Moir v. Hart, 189 Ill. App. 566. In support of their contention to the contrary, plaintiffs cite Pearlman v. W.O. King Lumber Co., 302 Ill. App. 190, 23 N.E.2d 826, and Krump v. Highlander Ice Cream Co., 30 Ill. App.2d 103, 173 N.E.2d 822. We do not consider these cases to be in point.
In view of the conclusion which we have reached on the question of liability, we will not recount the testimony on the subject of damages. Here, too, there was a failure of proof on the part of plaintiffs. See Lucas v. Bowman Dairy Co., 50 Ill. App.2d 413, 200 N.E.2d 374. Further, it appears that the trial court, in entering judgment for exactly $500 to cover the loss on each car, made no effort to ascertain the proper amount of damages.
The judgments of the Circuit Court are reversed, with judgments here in ...