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Keen v. Davis

MARCH 18, 1969.

JOHN M. KEEN, JR., A MINOR, AND WANDA J. KEEN, A MINOR, BY JOHN M. KEEN, THEIR FATHER, NEXT FRIEND AND NATURAL GUARDIAN, PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,

v.

ALVA C. DAVIS, DOING BUSINESS AS ALVA C. DAVIS DRILLING COMPANY, AND WILLARD TULLIS, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Wayne County; the Hon. ROY O. GULLEY, Judge, presiding. Order granting new trial affirmed.

GOLDENHERSH, P.J.

Rehearing denied April 10, 1969.

This is a companion case to Keen v. Davis, 76 Ill. App.2d 49, 221 N.E.2d 334, 38 Ill.2d 280, 230 N.E.2d 859. The plaintiffs are John M. Keen, Jr., and Wanda J. Keen, respectively 1 and 2 years of age, the minor children, and John M. Keen, Sr., the surviving husband of Carol June Keen, who died as the result of injuries suffered in the collision out of which this litigation arises.

In this case, prior to selection of the jury, the court allowed plaintiffs' motion to dismiss as parties defendant, John Davis and Clarence Taylor. The case proceeded to trial and the jury returned verdicts in favor of the minor plaintiffs and against the defendants, Alva C. Davis, and Willard Tullis, awarding damages for personal injuries suffered, and in favor of John M. Keen, their father, for medical expenses.

Defendants filed a post-trial motion, which as amended prayed arrest of judgment, entry of judgment n.o.v. and alternatively, for a new trial. The circuit court denied the motion insofar as it sought arrest of judgment and judgment n.o.v. and granted a new trial on the ground that the verdicts were against the manifest weight of the evidence.

Plaintiffs filed a petition for leave to appeal from the order granting the new trial. Upon allowance of the petition by this court, defendants filed a cross-appeal, contending that the trial court erred in its refusal to arrest judgment or enter judgment n.o.v., and alternatively that the verdict in favor of plaintiff, John M. Keen, Jr., was excessive.

The rule that the propriety of granting a new trial on the ground that the verdict is against the manifest weight of the evidence is within the sound discretion of the circuit court is so firmly established as to require no citation of authorities. The concomitant rule is that if a petition for leave to appeal presents grounds which are reasonably debatable, and fairly challenge the propriety of the order, the reviewing court should permit the appeal to be taken. Klatt v. Commonwealth Edison Co., 55 Ill. App.2d 120, 204 N.E.2d 319; Hall v. Chicago & N.W. Ry. Co., 349 Ill. App. 175, 110 N.E.2d 654; Wettaw v. Retail Hardware Mut. Fire Ins. Co., 285 Ill. App. 394, 2 N.E.2d 162.

The testimony adduced at the trial is substantially similar to that summarized in the opinions of the Supreme Court and of this court in the companion case, and only a brief review is necessary to a discussion of the issues.

The testimony of Clyde Robbins, called by plaintiffs, was substantially as reviewed in our prior opinion. In identifying the photograph there referred to, he stated that due to the angle of the picture it presents the truck as being more to the center of the road, and in his observation, he would say they were both equal distance in the road.

Larry Murphy's testimony was almost identical to that adduced at the prior trial.

Clarence Taylor died prior to the trial of this case.

Defendant, Tullis, called under section 60 of the Civil Practice Act, testified to substantially the same matters as in the previous trial except that he stated that when he saw the Keen vehicle for the first time it was 25 to 30 feet from the point where the collision occurred. He also testified that the photograph did not correctly here portray the position of his vehicle in the road.

Alfred Lane, a state trooper, testified that he was called to the scene and "if you had a center line, the left front and rear wheels of the truck would have been right on it."

Robert McNeill, coroner of Wayne County, testified that at an inquest conducted following the death of Carol June Keen, defendant Tullis was asked: "When did you first see ...


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