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Martin v. Mccarry

NOVEMBER 23, 1971.




APPEAL from the Circuit Court of Macoupin County; the Hon. PAUL G. VERTICCHIO, Judge, presiding.


This appeal results from the consolidation of suits involving multiple parties, multiple vehicles, multiple issues and multiple verdicts. The verdicts are seven in number. The issues in their ascending order are (1) were the cases properly consolidated; (2) were the verdicts returned by a single jury perverse or contradictory; and (3) if perverse or contradictory, are new trials in whole or in part mandated? Although the occurrence events involve collisions between a semi-trailer truck, a passenger bus and an automobile, the owner of the truck and its driver alone appeal.

The truck was proceeding in a northerly direction on Route 4 between the junction of Illinois routes 4-138 to his rear and the City of Gillespie ahead. It was a standard two-lane highway with the surface at least partially obscured by snow. Witnesses described the surface of the road in the vicinity of the accident as slippery, icy, snow-packed and established that the weather and road conditions were bad. This shoulder of the road on the west side of the highway is about three feet wide and the ditch on that side is three feet deep. The accident occurred around 6 P.M. on a January evening.

Proceeding in a southerly direction from the City of Gillespie was a work bus owned by the appellee Martin and operated by the appellee Fanning. Norbent, Beckley and Pernicka were passengers in the bus. As these two vehicles were approaching each other there was a double driveway on the east side of Route 4 into which the defendant Bartok, coming from the south in his automobile, entered after making a right-hand turn. The evidence would indicate that he pulled into the driveway, backed out onto the highway, saw the approaching traffic and pulled forward into the driveway again. The bus driver testified that he first saw the lights of the truck when it was about 500 feet south of the accident with each in its own lane of traffic. When he got within 250 feet of the accident, he saw that there was a car perpendicular to the highway headed east and blocking at least two and one-half to three feet of the northbound lane. This car never moved from the time he first saw it and it was always in that position until the accident occurred. He slowed down his vehicle, drove the bus partially onto the right-hand shoulder so that the right-front single wheel and the rear-dual wheels were about three feet off the west edge of the slab and his bus was partially on the shoulder at the time of the collision. The oncoming truck during the last 100 feet or so of travel crossed into his lane and struck the left-hand side of the bus. He could not say whether or not it was skidding.

The truck driver, McCarry, testified that when he first saw the car on the road he applied his brakes and was 150 feet south of it traveling north. His truck started skidding and he saw some headlights in the other lane when he was south of the car. These lights did not change position. When he applied his brakes, the car was still on the road. The biggest portion of his lane was blocked. The car was headed more or less east and west. After he applied the brakes, his truck begin to slide so he let up on the brakes and applied them again and the truck jackknifed. At this time, the tractor portion of the truck crossed over to the other lane of traffic. At this time, he was probably 40 to 50 feet from the car. He kept sliding and slid into the car and went over into the southbound lane and hit the bus. When the tractor collided with the bus, the tractor was approximately three or three and one-half feet over the center line in the southbound lane. He stated it was his feeling that his truck went more out of control when the truck hit the car than it had been and that he was maybe two feet or so over the center line when the impact with the car occurred and then he skidded another foot or a foot and one-half into the bus after the truck hit the automobile.

The defendant Bartok testified that he pulled into the driveway and after stopping backed out onto the road. He could see lights coming from both ways and he figured they were about a half mile away. He asked his eleven-year-old son if he was on or off the road and the son said he didn't know. Bartok pulled up another three or four feet and the son said o.k. He could not see where his automobile was in relation to the highway. Another son testified that he looked out the back window and could see some of the edge of the road off to the side and to the rear on the right side of his dad's car. Another son testified that the back end of the car was off the road two or three feet. He did not think the truck would hit the car, but it did strike the right side of the car behind the right-rear door. The left-rear tire of the truck was touching the rear fender after the accident. The foregoing we think is a reasonably accurate portrayal of the occurrence events.

The three bus passengers sued the truck owner, the truck driver, the bus owner and the automobile driver and obtained verdicts only against the truck owner and its driver. The bus driver sued the truck owner, its driver and the automobile owner and obtained a judgment against the truck owner and the truck driver only. The bus owner sued the truck owner, the truck driver, and the automobile driver and obtained a judgment against the truck driver and the truck owner only. The truck driver and the truck owner obtained a judgment against the automobile owner in their suits against the automobile owner, the bus driver and the bus owner. The automobile owner does not appeal from the judgments against him. The truck driver and the truck owner each appeal in all cases where verdicts were entered against them. It is their position that the consolidation of the cases for trial was error and resulted in a loss of substantial rights, that the jury was erroneously instructed as to damages in the bus driver's suit against them and that in any event the court ought to order a remittitur of $15,000 of the bus driver's judgment against them.

• 1-3 Apparently everybody acquiesced in consolidating the cases for the purpose of depositions. The trial court ordered the consolidation of the cases for trial at the pretrial conference. Under our statute, Ill. Rev. Stat. 1969, ch. 110, par. 51, actions pending in the same court may be consolidated "whenever it can be done without prejudice to a substantial right". Such consolidation is a matter within the discretion of the trial court and unless that discretion has been abused, a reviewing court will not interfere. (Lumbermens Mutual Casualty Co. v. Poths, 104 Ill. App.2d 80, 243 N.E.2d 40; Black Hawk Motor Transit Co. v. Commerce Com., 383 Ill. 57, 48 N.E.2d 341; City of Chicago v. Atkins, 19 Ill. App.2d 177, 153 N.E.2d 302.) Apparently that discretion is measured by a determination of whether or not substantial rights will be prejudiced if the consolidation takes place. (Peck v. Peck, 16 Ill.2d 268, 157 N.E.2d 249.) The appellants do not seriously question this proposition, but rather contend that consolidation does not authorize a jury to return verdicts which are diametrically opposed to each other nor does it justify a trial court in refusing to grant a new trial when such a result obtains under consolidation. Cited in support of this position is Alabama Highway Express, Inc. v. Luster, 371 S.W.2d 182 (Tenn.); Milliken v. Smith, 405 S.W.2d 475 (Tenn.); Detrixhe v. McQuigg, 316 P.2d 617 (Okla.). These cases expressly repudiated Brown v. Parker, 233 S.W.2d 64, (Ark.) relied on by the trial court. Appellants insist that the court in Brown and the trial court here did not attach sufficient significance to a basic conclusive factor — only one jury is hearing the evidence and it cannot at the same moment believe that two totally irreconcilable and inconsistent facts exist. This rule does not obtain when separate trials are had before different juries. We think we should here point out that if the ultimate facts in this case are irreconcilable, inconsistent and diametrically opposed, it does not follow that the occurrence facts are irreconcilable, inconsistent or diametrically opposed. In short, as pointed out in the Milliken case, the rule is that the same jury on a single set of facts and circumstances cannot reach two different conclusions of facts as expressed in their verdicts which will support valid judgments unless these opposite, inconsistent conclusions are reconcilable under an applicable rule of law.

The court gave the following instructions:

"Although there is more than one defendant in this action, it does not follow from that fact alone that if one is liable, all are liable. Each is entitled to a fair consideration of his own defense and is not to be prejudiced by the fact, if it should become a fact, that you find against the others. The instructions govern the case as to each defendant, insofar as they are applicable to him, to the same effect as if he were the only defendant in the action, and regardless of whether reference is made to defendant or defendants, in the singular or plural form. You will decide each defendant's case separately, as if each were a separate lawsuit.

The rights of the parties in these suits are separate and distinct. You should decide these as separate suits. But, the instructions given you apply to more than one party, they govern the case of each party to whom they apply.

If you find that a plaintiff is entitled to recover against more than one defendant, you may not allocate the damages among them, but you must return a verdict in one, single sum against all defendants whom you find to be liable."

The abstract discloses no objection on the part of anyone to these instructions in the conference on instructions and it is crystal clear that the jury was instructed and directed by the court to treat each cause of action separately. All parties concede that this is obviously what would happen if there was a severance and all suits were tried separately. All parties likewise concede that under such circumstances on the same set of facts arising out of the same event seperate juries could return perverse and diametrically opposite verdicts. Strictly speaking, the jury in this case did exactly what they were told to do, that is, handle each case on a separate basis and this they did. These verdicts, say the appellants, lack rationality when the jury held McCarry, the truck driver, guilty of negligence as to the bus driver, bus owner and passengers and yet the same jury held that this conduct did not amount to contributory negligence in their suit by McCarry and Major, the truck owner, against Bartok. Bartok, of course, did not appeal and is thus not unhappy with the overall result.

The trial court's able memorandum opinion did not follow the Tennessee and Oklahoma authorities cited above, but expressed what appears to us to be the majority opinion followed in the courts of Nebraska, Arkansas, Missouri, New Mexico and New Jersey. This view is ...

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