APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Dorothy Ruggiero, as the administratrix of the estate of Louis Ruggiero, and Richard Bertucci, sued for personal injuries sustained as the result of an automobile collision between the car they were riding in and a taxicab of defendant Public Taxi Service, Inc., which was being driven by the co-defendant, Samuel Abrahams. Ruggiero died during the pendency of the litigation from causes other than injuries received in the accident. Defendants' motion for a directed verdict at the close of all the evidence was denied, and the jury returned a general verdict for plaintiffs, upon which the court entered judgment. The jury also answered "yes" to a special interrogatory asking, "Were the defendants, Sam Abrahams and Public Taxi Service, Inc., guilty of negligence which proximately caused the alleged injuries of the plaintiffs?" Defendants' post-trial motion to set aside the answer to the special interrogatory, for judgment notwithstanding the verdict, or for a new trial were all denied.
Defendants contend: (1) the trial court erred in denying their motion for a directed verdict at the close of all the evidence; (2) the answer to the special interrogatory was against the manifest weight of the evidence; (3) the trial court erred in its rulings on certain instructions; and (4) the trial court placed a greater burden on defendants than that of ordinary care in the operation of their motor vehicle.
Defendants allege by way of an affirmative defense that immediately prior to the collision with plaintiffs' auto, and while Abrahams was waiting in his taxicab for a red light, he was attacked by two unknown assailants and as a result of this attack his vehicle was caused to enter the intersection and collide with plaintiffs' automobile.
At trial Abrahams was called to testify under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 60): The accident occurred on July 29, 1967, between 5:30 and 6:30 P.M., and while there was still daylight. It was bright and clear, and the pavement was dry. The cars collided at the intersection of Clark Street and Wacker Drive. Clark is a one-way street going south, and Wacker has three lanes going west and three lanes going east. He stopped for a red light at the intersection and in the middle of Clark. He did not recall which lane plaintiffs' car was in but knew it was going west on Wacker. He could not remember if the light was red as he entered the intersection, but the last time he noticed the light for south bound traffic on Clark, before the accident happened, it was red. His cab struck the right rear side of plaintiffs' car.
Bertucci testified that he was a passenger in Ruggiero's car, sitting in the right hand seat, while the car was travelling west on Wacker. The car was in the center lane nearest the island, rather than out near the curb. Up until the time of the accident the traffic light for traffic going west on Wacker was always green. A flash second before the actual impact took place, he saw the cab. It was in the middle of the intersection headed south. At this time the light was still green for west bound traffic. There were no other occupants in the cab except for the cab driver. In this flash second he noticed nothing unusual with respect to the doors of the cab. Then the right rear fender of plaintiffs' car was struck. After the accident, he was present when Ruggiero and Abrahams had a conversation. When Ruggiero asked Abrahams what had happened and didn't he see the light, Abrahams had responded that "someone was chasing him."
Abrahams again took the stand and testified in his own behalf: While he was stopped waiting at the red light, the two front doors of his cab were opened by two unknown men. He was punched on the left side and fell to the right side of the cab. Later he was punched on his right side. As a result of this attack he became dizzy and was stunned. He didn't remember anything until he heard a crash. He then woke up and found he had hit another car in the intersection. When he woke up, the men were still hitting him. This continued for a few seconds until the men ran away. After the accident, he exchanged information, names and licenses with either Bertucci or Ruggiero. For the period that he was knocked out he lost all control of his senses. A half hour later, when the police arrived, he had regained his senses. He never saw the two assailants get out of their vehicle nor had he ever seen them before.
Albert Sherwood testified for defendants that he saw two men in an Oldsmobile chase defendants' cab; they stopped his car and swore at him. This incident had occurred a short time before and a few blocks north of where the accident in question took place. He followed these two men as they drove south on Clark toward Wacker, but after Abrahams and the car with the two men passed the intersection at Illinois and Hubbard, he had to stop for a red light. He saw the driver of the Oldsmobile open defendants' car door and saw Abrahams way over to the right side of the cab, but did not see the accident between plaintiffs' car and the cab.
On cross-examination it was brought out that Sherwood is also a cab driver and knew Abrahams before the accident. He stated that the cab was never in the line of traffic for cars going west on Wacker although some part of the cab was out in Wacker. When he drove up to the intersection, the collision had already taken place. The right front fender of plaintiffs' car was damaged.
To impeach Bertucci defendants brought in a court reporter who had taken his discovery deposition. In this deposition Bertucci had been asked, "Did you see the other vehicle before the accident happened?" and had responded "no." Defendants also introduced the deposition of Ruggiero who stated that after the accident he saw a man by the left door of the cab throw a kick at Abrahams.
• 1 Defendants contend that because they raised an "uncontroverted affirmative defense" of an assault upon Abrahams, the trial judge, without more than a mere denial by plaintiffs and as a matter of law, should have directed a verdict in their favor. The controlling standard, which both plaintiffs and defendants agree control this issue, is that "* * * verdicts ought to be directed * * * 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." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504.
The direction of a verdict was not mandated when the evidence of defendants' affirmative defense stood unrebutted. Even where testimony is uncontroverted, inconsistent inferences and conclusions may be drawn, thereby making the question one for the jury. As was stated in Ladd v. Ruck, 108 Ill. App.2d 379, 382-3, 248 N.E.2d 147:
"* * * [P]laintiff insists that only one conclusion is warranted from the evidence, * * *. This assertion is based on plaintiff's view that because defendants offered no evidence as a defense to plaintiff's claim or in opposition to the evidence of plaintiff, no controverted issue existed or could exist. Plaintiff believes this position to be supported by Pedrick v. Peoria & Eastern R. Co., supra, a position with which we do not agree. Facts may be undisputed or a defendant may have failed to introduce evidence in his behalf but it does not follow that issues are therefore uncontroverted. Undisputed facts may give rise to different reasonable inferences to be drawn therefrom. Genck v. McGeath, 9 Ill. App.2d 145, 132 N.E.2d 437. The question also arises as to whether undisputed facts do or do not tend to prove or disprove the issues in ...