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Crosby v. Distler

OPINION FILED JUNE 7, 1976.

PAMELA CROSBY, PLAINTIFF-APPELLEE,

v.

CHRISTINE ANN DISTLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. ALFRED KIRKLAND, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The basic issue presented in this case is whether the trial court erred in setting aside the verdict of the jury and entering a judgment for the plaintiff, notwithstanding the verdict.

On March 26, 1972, Christine Distler and Pamela Howe (presently Pamela Crosby) drove into Chicago in Christine's car where they spent the afternoon and had dinner. After dinner they drove to the residence of Pamela's parents, located in Boulder Hill, south of Aurora. It had started to snow during the afternoon. About 11 o'clock that night the two women drove north on Route #31 from Pamela's parents' home enroute to the Hofbrauhaus in Aurora. As they approached the railroad underpass on Route #31, Christine slowed down for a stop-and-go light on Jericho Road. The light changed to green and she started to accelerate. At the time they reached the underpass she was going approximately 25 mph and not exceeding 30 mph. At this time there was approximately two inches of snow on the highway with ice underneath the snow at the scene of the accident at the underpass. The car skidded, struck an abutment and Pamela was injured. This lawsuit followed, filed by Pamela as a passenger in Christine's car.

The case was tried before a jury in April, 1974. The plaintiff and defendant both made motions for a directed verdict which were denied by the court. In response to the motion for a directed verdict by the defendant the court stated:

"The Court feels that there is a question for the jury and the Motion will be denied."

The jury then returned a verdict of not guilty as to the defendant. Plaintiff then filed a post-trial motion seeking a judgment notwithstanding the verdict, a new trial on the issue of damages only or a new trial on all issues. The court granted the motion, set aside the verdict of the jury and entered judgment for the plaintiff. The matter was resubmitted to a new jury on the issue of damages only, which jury returned a verdict of $18,500. Defendant has appealed.

At the trial the plaintiff testified that she didn't have any estimate of the speed at which the defendant was driving until the skid and that she did not recall whether the defendant slowed down when she came to the viaduct. She did testify that the defendant, Christine, had made all the turns and stops between Boulder Hill and the scene of the accident without difficulty and that the car had not slid until the scene of the accident. Three days after the collision, however, a statement had been taken from the plaintiff and that portion of the statement, as follows, was admitted into evidence as defendant's exhibit.

"The reason we were traveling below the speed limit is because the streets were so slippery.

I never had to warn her about her driving habits.

Just prior to the accident, Chris had slowed down."

Both parties rely upon the oft-quoted case of Pedrick v. Peoria & Eastern RR. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, wherein the court stated:

"[V]erdicts 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."

The issue then presented to us is whether all the evidence, when viewed in its aspects most favorable to the defendant so overwhelmingly favors the plaintiff that the not guilty verdict for the defendant could not stand. (See also Logan v. Allstate Life Insurance Co (1974), 19 Ill. App.3d 656, 312 N.E.2d 416.) We believe that when the facts in this case are examined under the Pedrick test, the not guilty verdict of the jury could, and should have been allowed to stand.

It is to be noted that most judgments notwithstanding the verdict are granted by the trial court upon motion of the defendant to set aside a verdict for the plaintiff. There is a paucity of cases involving ...


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