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Wolfe v. Whipple

AUGUST 28, 1969.

ROBERT WOLFE, PLAINTIFF-APPELLEE,

v.

HARVEY E. WHIPPLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Rock Island County, Fourteenth Judicial Circuit; the Hon. CONWAY L. SPANTON, Judge, presiding. Reversed and remanded.

ALLOY, J.

Plaintiff Robert Wolfe instituted the present action as against defendant Harvey E. Whipple for personal injuries caused by the alleged negligence of defendant in the operation of an automobile. At the close of all the evidence, the trial court directed a verdict for plaintiff and submitted to the jury only the issue of the amount of damages to plaintiff. The jury returned a verdict assessing such damages at $50,000. On appeal in this Court, defendant contends that the court erred in directing such verdict and, also, that the court erred in entering a certain preliminary order in limine and in excluding certain exhibits.

The record discloses that the plaintiff Robert Wolfe was a police officer working for the City of East Moline. He and officer Van Tyne were on duty around 2:00 o'clock a.m., April 1, 1967, when they received a call to go to a certain destination. They proceeded northerly on Route 84 when the engine on their police car stalled. The engine started again and they proceeded north on Route 84 about 300 feet when the motor stalled again. Plaintiff was driving the car at the time and he put the car into neutral gear and let it roll to a stop. There was some conflict in the evidence as to where the police car finally stopped. The testimony of the driver of a car which stopped behind the police car was that the police car was stopped in the northbound lane heading north and that the car was entirely located within its right-hand side of the highway at such point. Plaintiff and officer Van Tyne both testified that the police car was off on the right shoulder with the exception of the left three feet of the car which was on the highway. The shoulder in the area was about six feet wide and was composed of dirt and cinders. When the accident occurred, it was dark, misty, drizzling, and hazy, and the pavement was wet. Route 84 is level in the area where the police car stopped and there was nothing normally which would obstruct the vision of anyone approaching the police car from the north or south on Route 84.

After the police car came to a stop, plaintiff activated the single, red, revolving light on top of the police car and he also left the police car headlights on and turned on two blinking amber warning lights on the front of the police car and two on the back of the police car. Plaintiff began to direct traffic around the stalled police car, using a flashlight. No flares were put out, and there was testimony that no flares were required by any prescribed regulation. Officer Van Tyne, who was a mechanic, began to work on the engine of the police car. He raised the hood of the police car. There was a conflict in the evidence as to how far he raised the hood. There was specific evidence of a witness who stopped at the rear of the police car that the hood was raised to its full height. There was also testimony that the hood on the 1966 Ford (the type of police car) can be raised about halfway up and it will hold in that position. If it is raised higher, a spring lift is engaged and it lifts the hood up to its highest point. This highest point was shown to be 18.6 inches above the highest point of the car. The oscillating red light on the top of the car is 12 to 13 inches above the top of the car so that if the hood was opened as high as it could be raised, it would extend about 5.6 inches above the red light on the top of the police car and would obstruct the view of that light. There was evidence that if the hood was not raised to the full height, the red light could be seen by someone coming in the opposite direction and easily seen by a 6-foot man standing in the roadway. As we have indicated, however, the witness in the car stopped behind the police car testified that he observed that the hood of the police car was "all the way up."

Defendant approached the stalled police car from the north proceeding in a southerly direction. There was no obstruction to defendant's vision as he approached the police car, and he testified that he was driving about 35 to 40 miles per hour. Another automobile in front of the defendant proceeded on past the police car with no difficulty. Defendant testified that as he approached the police car, he had his dim lights on, as it was hazy. He testified that he did not see the red revolving light on top of the police car, until he was two car lengths from the police car. At this time the red oscillating light flashed across his window and he slammed on his brakes, his tires skidded on the wet pavement, and he slid into the northbound lane and struck the plaintiff pinning him against the fender of the police car.

As we have indicated, the witness, a Mr. Winston, who was stopped in a position immediately behind the police car testified that while plaintiff had been directing traffic previously, at the time of the accident plaintiff appeared to be leaning over the left front fender of the police car looking under the hood of that car. Plaintiff stated that he looked in the direction of defendant's car sliding toward him but was unable to get out of the way and was immediately pinned against the fender of the police car.

There was a conflict in the evidence during the trial as to whether or not defendant was intoxicated as a result of consumption of alcoholic liquors, but in directing the verdict, the trial judge said that he assumed for the purpose of that motion that defendant was sober.

In the course of the trial, a question arose as to the admissibility of income tax returns of the plaintiff. Plaintiff was injured on April 1, 1967, and did not return to work as a policeman until a year later, on April 4, 1968. He had worked as a policeman during the night and as a building contractor during the day and had built six houses in the year prior to the accident. He had worked as a building contractor along with a John Corea and he and Corea did much of the carpenter and masonry work on the houses, although they did hire some of the work done. Plaintiff testified that he completed six homes after the accident but that he had to hire extra or substitute help to perform the work which he normally did himself but was unable to do because of his injuries. He also testified that several of the people for whom he was building houses performed some of the work which he normally would have done and that he gave them credit for such labor performed by them when they settled up for the houses. Plaintiff testified specifically that he had paid out $9,292 in payments to hired help to perform the work he normally would perform and, also, that he allowed $2,750 in credits to others for whom he was building homes, making a total of $12,042.

After plaintiff had testified, defendant attempted to introduce Exhibits 12, 13 and 14, which were plaintiff's 1965, 1966, and 1967 Income Tax Returns, in evidence. These returns showed wages as follows: In 1965-$919; in 1966-$6,239; in 1967-$6,461. 1967 was the year of the accident. These returns also showed on Schedule C (the business schedule) that the construction business netted the following amounts: 1965-$5,693; 1966-$5,998; 1967-$3,792 (1967 was the year of the accident). These returns were offered in evidence by defendant to show that plaintiff had made a prior admission that he had earned wages of $6,461 in 1967 and such admission was inconsistent with his testimony that he had lost wages of $5,950. The returns were also offered to show that there was a question as to the credibility of plaintiff's testimony that he could have earned $12,042 additional in his construction business if he had not been injured, as the tax return showed a drop in net income from construction business of only about $2,200.

Plaintiff made a motion in limine outside of the presence of the jury for the purpose of excluding such evidence from the trial. At the hearing on such motion to exclude the evidence, which was held in the Judge's chambers, plaintiff's attorney attempted to explain the 1967 wages of $6,461 by saying that such payments were concerned with something analogous to workmen's compensation. It was admitted by both parties that workmen's compensation payments or similar type payments are not to be included on income tax returns, as such payments are not income. Defendant admitted that if the payments were in the nature of workmen's compensation they should not be admitted into evidence but the dispute was concerned with whether the payments were similar to workmen's compensation. It appears that plaintiff may have received the amounts as a substitute for workmen's compensation payments which were returned or waived so as to give plaintiff his full salary during the period of time he was unable to do his work as a police officer. Defendant, however, denied that this $6,461 shown as wages on the 1967 income tax return was from a collateral source and similar to workmen's compensation or disability insurance and contended that the jury should determine from the tax return and the testimony of the plaintiff himself, if such sums were from a collateral source similar to workmen's compensation. The trial judge granted the defendant the opportunity to examine the plaintiff and his accountant outside the presence of the jury to determine if such wages were similar to workmen's compensation or were actually other wages which should be admitted in evidence. Defendant refused such offer contending that such question as to whether these were or were not wages was a fact question which should be determined only by the jury. The trial judge then refused to admit the returns into evidence and granted plaintiff's motion in limine.

The fundamental question before us is whether the trial court was correct in directing a verdict for plaintiff on the question of liability. Attorneys for both parties cite Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504, as specifically justifying the arguments made by plaintiff for affirmance and by defendant for reversal of this cause. It is noted that in the case of Pedrick v. Peoria & Eastern R. Co., supra, at page 510, the court stated:

"Nor, as earlier stated, does it seem to us that the any-evidence rule or any of its variants (no conflict in the evidence; scintilla rule) is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so overwhelmingly rebutted that no verdict based thereon could possibly stand. In such instances no action other than a directed verdict is consonant with efficiency in our judicial system and with a fair and expeditious termination of litigation.

"Rather, we believe the rule is best which in some form finds favor in other States heretofore indicated and which has, in part, been heretofore recognized in this State. In our judgment verdicts ought to be directed and judgments n.o.v. 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."

It is recognized in the Pedrick case, that where a substantial factual dispute is disclosed by the evidence, either on the issue of plaintiff's due care or defendant's negligence, or where an assessment as to credibility of witnesses and an election between conflicting evidence may be decisive, the constitutional right of the parties to a jury determination should be carefully preserved, and it would be erroneous to direct a verdict in such ...


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