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Doerr v. Palm

AUGUST 31, 1971.

NORMAN E. DOERR, ET AL., PLAINTIFFS-RESPONDENTS,

v.

HERBERT J. PALM, DEFENDANT-PETITIONER.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM BARTH, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order granting plaintiff's motion for a new trial after a jury verdict in favor of defendant.

On August 28, 1963, Herbert J. Palm operated a Chevrolet automobile in a southerly direction on Pulaski Road, approaching its intersection with Wellington St., in the City of Chicago. Plaintiff Doerr was the driver of a Mercury station wagon which was also facing in a southerly direction on Pulaski Road, but was stopped at the aforesaid intersection waiting for the red traffic control light to change. Plaintiff Dolan was a passenger in the Mercury. It further appears that defendant's Chevrolet struck the right rear portion of the plaintiffs' Mercury. At the time this incident occurred, it had been raining and the street was wet.

The impact of the collision damaged the front bumper, the grill and one of the front fenders of the Chevrolet. In addition, its hood was caused to spring open. The rear portion of the Mercury was damaged. Dolan was thrown off his seat on to the floor. The impact also caused Doerr to be rapidly thrust backward and then forward. Both plaintiffs testified that they sustained whiplash injuries and were taken by the police to the hospital.

At the trial, plaintiffs, pursuant to section 60 of the Civil Practice Act, (Ill. Rev. Stat. 1969, ch. 110, sec. 60) called defendant to testify as an adverse party. He stated, among other things, that as he approached Wellington St. and was about one-half block to the north of that street, his speed was about thirty miles per hour. Defendant when asked if he had his mind on something else, responded: "Yes, perhaps I was thinking, trying to think ahead a little bit. That's my job." He further stated that he had seen the stopped Mercury when he was about forty feet behind it, and at the time applied his brakes. In addition, defendant testified that when he reached a point approximately fifteen feet to the rear of the Mercury, he hit a greasy slick spot on the street that covered an area of fifteen feet, lost all traction and slid into the Mercury at a speed of about ten to fifteen miles per hour.

Doerr testified that as he approached the traffic control light, he had no difficulty stopping his vehicle and didn't encounter any greasy slick spots on the street. Dolan's testimony was to the same effect. The jury then returned their verdict in defendant's favor.

After hearing on a motion for new trial, the trial court, after hearing argument of both counsel stated:

"* * * The only thing I am concerned about is the finding of the jury, because I questioned the jury after it was all over. I found out what their reasoning was and so forth and so on; I have a little advantage over you. The only thing I am concerned about is the way the accident happened, and that is what I want to confine myself to hear."

Counsel for plaintiff then interjected and said:

"In concluding then, Judge, I would only say this, that the admissions of the defendant as to speed on a slippery pavement, the fact that the plaintiff was stopped at a stop light, which is admitted by both sides, indicates definite negligence. There were items of damage that were stipulated to, uncontested, and it is a matter of law. He was entitled to a verdict. * * * I respectfully think we should have a new trial.

The Court: Both sides finished?

Defendant's Counsel: Both sides finished.

The Court: Now, as I said, I have a little advantage over you people, because I questioned the jury. Frankly, I was very surprised at the verdict, because there was no question even admitted by counsel for the defendant. The plaintiff was ...


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