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Prange v. Wallenburg

APRIL 3, 1975.

DOROTHY G. PRANGE ET AL., PLAINTIFFS-APPELLEES,

v.

JACK C. WALLENBURG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SAUL A. EPTON, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This action arose out of an intersection collision in which the automobile operated by defendant Jack C. Wallenburg struck the automobile driven by plaintiff Dorothy Prange. In Count I of plaintiff's complaint, Dorothy Prange sought damages for personal injuries and damage to her automobile; in Count II her husband, plaintiff Jack Prange, sought damages for medical expenses and loss of consortium. The jury returned a general verdict for defendant and a special finding that plaintiff was contributorily negligent. Judgment was entered on the verdict.

After considering plaintiffs' post-trial motion the trial court set aside the special finding and general verdict, and entered judgment notwithstanding the verdict (non obstante veredicto) for plaintiffs on the issue of liability, and a new trial on the issue of damages only, and conditionally awarded plaintiffs a new trial on all issues in the event the order of judgment n.o.v. and a new trial as to damages only is reversed. We granted defendant leave to appeal (Ill. Rev. Stat. 1971, ch. 110A, par. 306). We reverse the order of the trial court and enter judgment for defendant on the general verdict.

The issues raised on appeal are whether the trial court erred (1) in the order for a judgment n.o.v. for plaintiffs as to liability and for a new trial on the issue of damages only; and (2) in conditionally granting a new trial on all issues in the event the order of judgment n.o.v. and new trial for damages is reversed.

The facts giving rise to the instant litigation may be stated briefly. In the early afternoon on November 14, 1969, Mrs. Prange was driving her automobile westerly on 64th Street, approaching its intersection with Hamlin Avenue, in Chicago. 64th Street is a 4-lane undivided 2-way east-west residential street. Hamlin Avenue is an undivided 2-way north-south street; there are no traffic signals or controls at the intersection. Defendant was driving northbound on Hamlin Avenue and struck Mrs. Prange's vehicle within the intersection. Mrs. Prange's car was thrown against a street lamp post on the northwest corner of the intersection. The only direct evidence as to the occurrence was the testimony of Dorothy Prange and the defendant. The other evidence consisted of photographs of the damaged Prange automobile and the testimony of Mr. Prange and of the police officer who appeared on the scene some 10 minutes after the accident. The evidence as to liability is conflicting and will be set forth when pertinent.

At the close of all the evidence plaintiffs' motion for a directed verdict against defendant on the issue of liability, or, in the alternative, to find defendant guilty of negligence, was denied. The jury returned a general verdict for defendant, and in answer to a special interrogatory, found plaintiff had been contributorily negligent. Following a hearing on plaintiffs' post-trial motion, the court orally observed that it had been sure the jury would find for the plaintiffs and specifically find that plaintiff was not contributorily negligent. The court further expressed a doubt that the jury — which began its deliberation on the previous date — had deliberated very long the next morning and that it took the "easy way out" by signing the special interrogatory. The court orally observed, as to the reasons plaintiffs were not guilty of contributory negligence, that defendant in a hostile manner drove away an unknown eyewitness who "had she been available, we would really have known the truth," and that the defendant stated that whatever the police officer said was a lie.

The order entered by the trial court found inter alia that it had erred in denying plaintiffs' alternative motions for directed verdict; the verdict is contrary to the manifest weight of the evidence; the special finding is contrary to the manifest weight of the evidence; the court erred in giving the special interrogatory; there was no competent evidence of contributory negligence of either plaintiff; and that the evidence overwhelmingly favors plaintiffs and establishes the negligence of defendant so that no contrary verdict on that evidence could ever stand.

• 1, 2 The objections to the special interrogatory as raised in the trial court and on appeal were that there was no competent evidence of contributory negligence and that the interrogatory was misleading and confusing. Section 65 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 65) provides:

"Verdict — Special interrogatories.

Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly." (Emphasis supplied.)

The above provisions are clear. It has been held that the statute mandates the giving of a special interrogatory if it is upon an ultimate question of fact and is in proper form. (Phillips v. Shell Oil Co. (1973), 13 Ill. App.3d 512, 518, 300 N.E.2d 771.) The refusal to give a special interrogatory as to a plaintiff's contributory negligence has been held to be error in light of the mandatory requirement. (Moyers v. Chicago & Eastern Illinois R.R. Co. (1963), 43 Ill. App.2d 316, 193 N.E.2d 604.) The special interrogatory in the instant case asked: "Was the plaintiff, at the time and place in question, guilty of negligence which proximately contributed to cause the accident and injury in question?" It is neither confusing nor misleading. As will hereinafter appear, sufficient competent evidence was presented to require the giving of the special interrogatory.

• 3-8 The answer to a special interrogatory may not be set aside unless it is contrary to the manifest weight of the evidence, which requires that an opposite conclusion be clearly evident. (Houston v. Leydon Motor Coach Co. (1968), 102 Ill. App.2d 348, 243 N.E.2d 293.) The underlying reason for the rule that an inconsistent special finding controls a general verdict is that a jury more clearly comprehends a particularized special interrogatory than a composite of all the questions in a case, and therefore, a special finding upon which a jury has presumably more intensively focused its attention should prevail. (Borries v. Z. Frank, Inc. (1967), 37 Ill.2d 263, 266, 226 N.E.2d 16.) The distinction is rather carefully preserved between the evidentiary situation which will require a new trial and that which will justify direction of a verdict or judgment n.o.v.; 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. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 509, 510, 229 N.E.2d 504.

• 9 In the instant case, inasmuch as the special finding is not inconsistent, it does not control the general verdict herein. Accordingly, the judgment must follow the general verdict unless a sufficient reason appears for entering judgment n.o.v. Notwithstanding the presumption that the jury more intensively focused its attention on the issue of contributory negligence to make the consistent special finding, our review will be directed as if the jury returned only a general verdict for defendant as to which the trial court granted plaintiffs' motion for judgment n.o.v. Therefore, the Pedrick standard of review is applicable.

The evidence as to what actually occurred at the intersection of 64th Street and Hamlin Avenue on the day in question is, at best, conflicting. Mrs. Prange testified that she approached Hamlin Avenue from the east, traveling at a speed of 4 to 5 miles an hour; she was just "creeping out" because there is a 3-flat building on the left and one has to get to the crosswalk to see down the street; she looked to her left and saw defendant's vehicle more than 200 feet away and his speed appeared to be "normal"; after looking to her right and seeing no traffic she looked to her left and saw defendant's vehicle more than 100 feet away and still traveling at a "normal" speed; she looked straight ahead and proceeded across the intersection at 4, 5 or 6 miles an hour, assuming that defendant would yield the right-of-way. Mrs. Prange further stated that when she was halfway across the intersection she heard a "rustling" and thought defendant had "evidently" increased his speed and was coming really fast. She heard the screech of tires like a "hotrodder" and saw defendant's car traveling northbound on Hamlin in the left lane without showing a turn signal. She stated the point of impact occurred in the northwest quadrant of the intersection and that defendant's right ...


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