APPEAL from the Circuit Court of McLean County; the Hon.
LELAND SIMKINS, Judge, presiding.
MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
OPINION AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING
The trial court entered judgment upon a jury verdict in favor of the respective defendants. Upon special interrogatories the jury found that neither the plaintiffs nor either defendant was guilty of negligence. The plaintiffs appeal from the verdict entered in favor of the defendant, Gleim.
Here, plaintiffs urge that the jury finding upon the special interrogatories as to Gleim is contrary to the manifest weight of the evidence; that Gleim was guilty of negligence as a matter of law; that the court erred in refusing certain of plaintiffs' tendered instructions and in giving certain of the defendant's instructions; and that the closing argument in behalf of Gleim was prejudicial.
The accident occurred in mid-morning at the intersection of an east and west country road and the two southbound lanes of Route 66. The pavement was wet from drizzling rain. The two northbound and two southbound lanes of Route 66 are separated by a grass median. Defendant Gleim's car struck defendant Sowins's car in the rear end and defendant Gleim's car was shortly thereafter struck in the rear by plaintiff Dorweiler's car.
Defendant Sowins, age 46, was driving south in the left portion of the southbound lane and his wife, Virginia, age 44, was a passenger in the front seat. Sowins was intending to turn east on the intersecting road to a restaurant which was at the southeast corner of the intersection. He stated that prior to his turn there was a little blue car back of him about three or four car lengths. There is a considerable variety in his own accounts of when he saw the blue car, when he turned his left blinker light on, and when the blue car passed him. By one account, Sowins was about a block away when he turned the blinker on, about a block away when he saw the blue car and about a block away when the blue car passed him. By this account, he looked again in the side rear view mirror and there was no car behind him when he was a half block away. By another account, when a question was asked how far he meant by a block, he said 4000 feet. By another account, he said the blue car passed him when he was within 100 feet of the intersection. He said the blue car was travelling 40 to 50 miles per hour when it was in the process of passing him. Sowins also stated that one hundred yards from the intersection he was going five or ten miles per hour. He testified that his front wheels were two or three feet off the pavement and his rear wheels were on the pavement when he was struck from the rear by a car driven by defendant, Gleim, in the left hand lane. At another point, his response to a question indicated his left wheels were off of the pavement.
Sowins further testified that the accident pushed his car across the pavement which intersects the two southbound lanes and the two northbound lanes and into the ditch on the south side thereof. The Gleim car was stopped in the left hand southbound lane 50 feet south of Sowins car after the accident. Plaintiffs' car was directly west of the Sowins car in the right lane facing north after the accident. Sowins did not see or hear another collision after the car collided with him.
Virginia Sowins testified that her husband gave the turn signal about a block away, that he did not slow down suddenly, that they were just creeping to where they were going to turn when they were struck. She paid no attention to traffic in front or behind her car for five hundred feet before the accident. She did not see the blue car which passed them just before the accident. She stated they were hit in the right rear.
Defendant, Gleim, age 24, was driving south with a small child in a car seat in the front. She was following a small blue car in the left hand southbound lane for a considerable distance, following at about three or four car lengths about 5 miles per hour. She knew there was traffic ahead of the blue car. She said that about seven or eight car lengths before the intersection the blue car turned immediately to the right lane without giving any turn signal, and she then saw the Sowins car for the first time. She said she could not turn into the right lane because of traffic and made an emergency application of her brakes. She said the blue car slowed after it got into the right lane. She testified she was going 9 to 10 miles per hour when she hit the Sowins car in the left lane. She said her car was stopped, that she looked to see if her baby was safe and that the baby was not thrown out of the seat. She stated that after she was stopped, she was hit again while her car was in the left hand lane, and that her car was hit in the left back and center. She said the second impact was more severe than the first, and that after the second impact her son was almost passed out. She said the blue car had passed the Sowins car before she got to the Sowins car.
Louise Dorweiler, plaintiff, age 69, testified that she was driving a 1965 Chevrolet Impala south in the right hand lane when the Gleim automobile pulled in front of her and she had no chance whatsoever. Her husband was a passenger in the front seat. She did not see the Gleim car contact the Sowins car. She said she noticed the Gleim car overtaking her. She said it was almost instantly as the Gleim car passed her that the impact with her occurred. For about a mile before the accident she had been travelling about 50 miles per hour. She said that prior to the accident, she could not see the rear of the Sowins car because it was in the left hand lane. Apparently, on a deposition, she had stated that she could see the rear of the Sowins car. She stated that she did not see a turn signal on the Sowins car. She said there was no obstruction between her and the Sowins car, but she didn't pay much attention to the cars in the left hand lane. She did not see any stop lights on the rear of the Sowins car. The front end of her car ran into the back end of the Gleim car. She testified that she did not see the blue car.
Plaintiff, Leo Dorweiler, age 70, testified he was a passenger in the car driven by his wife, that a car swerved in front of them quickly, that the back end of the car in front of them was across the road and they hit behind the back wheel. He said the collision was in the right lane. He said he saw the rear end of the Sowins car two hundred feet before the accident, and that he couldn't remember seeing any turn signals on it. He testified that he never saw a blue car between the Sowins car and the Gleim car. He later said when he first saw the Sowins car, he was as close as two car lengths.
• 1, 2 This is a typical case where the conflicting testimony poses a question of fact for a jury. In the entire composite of testimony, though it is not free from doubt, the testimony of defendant, Gleim appears most consistent. In order to establish negligence the party asserting negligence must produce a preponderance of the evidence. While it is natural to suppose that some person and not merely weather, condition of the road and happenstance positions of the cars, was the cause and that such person must have been negligent, neither is this necessarily the case, nor is it necessarily true that the evidence establishes who was at fault. In the absence of proof which preponderates in favor of the charge of negligence, the jury must necessarily find no negligence and if this situation applies to all parties, then as to the particular suit the result is the same as if the calamity were pure accident.
There is some evidence that the second collision happened in the left hand lane and, if this were so, defendant, Gleim, would not have been guilty of negligence which proximately caused the accident. The jury could well have believed that plaintiffs' failure to notice the blue car and other obvious facts made their testimony that they were in the right lane when the collision occurred less worthy of belief than defendant, Gleim's testimony, which is in part supported by defendant, Sowins.
• 3 Where the evidence is conflicting and the verdict is not manifestly against the weight of the evidence, the reviewing court will not substitute its judgment for that of the jury. Kahn v. James Burton Co., 5 Ill.2d 614, 623, 126 N.E.2d 836; Danhof v. Osborne, 10 Ill. App.2d 529, 552, 140 ...