APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
The plaintiff, Willie Glenn, was injured when a car in which she was riding was struck from the rear by an automobile allegedly driven by the defendant, Survillar Mosley. At the close of the plaintiff's case, the trial court directed a verdict for the defendant. Mrs. Glenn appeals from this order and from the denial of her post-trial motions, contending that her evidence was sufficient to establish a prima facie case of negligence.
Albert Beason testified that on July 30, 1970, he drove Mrs. Glenn to work in his auto. At the intersection of Marquette Road and Woodlawn Avenue, Chicago, his eastbound auto was struck from the rear while he was waiting for a red light to change. He said that he had been standing still for 15 seconds or more prior to the impact and that his auto was pushed five or six feet forward by the force of the collision. He said the traffic was light and that no other motor vehicles were involved in the collision. Beason got out of his auto and talked to the woman who was the driver of the car that hit him. At first, he said that he had forgotten the woman's name, but in response to a leading question by the plaintiff's attorney he replied that he thought her name was Mosley. The court sustained a defense objection to the question and instructed the jury to disregard Beason's supposition about the woman's name.
Beason was the plaintiff's only witness on the issue of liability because Mrs. Mosley had died in 1971, and the court ruled that Mrs. Glenn was precluded from testifying by reason of the "Dead Man's Act" (Ill. Rev. Stat. 1971, ch. 51, par. 2).
In granting the defendant's motion for a directed verdict at the conclusion of the plaintiff's case, the court ruled that Mrs. Glenn had produced no evidence of negligence and no evidence identifying Mrs. Mosley as the driver of the car that injured her. Mrs. Glenn argued that the pleadings made up for the deficiency in the evidence. The court examined the pleadings and held that while Mrs. Mosley's answer admitted that she was operating the car, it specifically denied that her car collided with the auto in which Mrs. Glenn was riding.
Mrs. Glenn's complaint, which contained five numbered paragraphs, stated in the first paragraph that on July 30, 1970, she was a passenger in an automobile traveling in an easterly direction along Marquette Road at or near Woodland [Woodlawn] in Chicago, and that she was exercising due care and caution. Mrs. Mosley's answer stated that the plaintiff was an occupant, not a passenger, in the automobile and that she was not exercising care and caution for her own safety.
Paragraph 2 of the complaint alleged:
"At the aforementioned time and place, the Defendant SURVILLAR MOSLEY, owned a certain motor vehicle which she was then operating in an easterly direction on Marquette Road."
The answer admitted these allegations.
Paragraph 3 of the complaint alleged that it was the duty of the defendant to exercise reasonable care towards the plaintiff, and paragraph 4 alleged that notwithstanding this duty, the defendant committed certain specified negligent acts of commission or omission. The answer denied the allegations in paragraphs 3 and 4.
Paragraph 5 of the complaint alleged:
"That as a direct and proximate result of one or more of the foregoing acts of omission or commission the vehicle operated by the defendant did collide with the vehicle in which the plaintiff was riding, as a result of which the plaintiff sustained painful, serious and permanent injuries."
The answer stated: "The defendant denies the allegations of paragraph 5."
It is to be noted that Mrs. Mosley admitted in her answer that she was operating her auto in an easterly direction "at the aforementioned time and place," that is on July 30, 1970, on Marquette Road near Woodlawn Avenue the place where the plaintiff was injured. Her answer also asserted that Mrs. Glenn was an occupant rather than a passeger in the car in which she was riding, and that Mrs. Mosley was exercising due care at the time of the accident, but that Mrs. Glenn was not. These admissions and assertions placed Mrs. ...