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Spankroy v. Alesky

OPINION FILED JANUARY 18, 1977.

DAVID SPANKROY, A MINOR, BY LOIS SPANKROY, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

PATRICIA ALESKY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS X. CONNELL, Judge, presiding.

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

Patricia Alesky (defendant), pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306), appeals an order of the trial court setting aside a jury verdict and granting a new trial. The following issues are presented: (1) did the trial court abuse its discretion in granting a new trial; and (2) did the trial court err in directing a verdict in plaintiff's favor as to contributory negligence.

The relevant facts follow. David Spankroy (plaintiff), a passenger in a car driven by Mark Lefler on June 19, 1972, was involved in an accident with a car driven by defendant. Lefler's vehicle was traveling east on a pedestrian crosswalk in the parking lot of the Cermak Shopping Plaza (Berwyn, Illinois), when it was hit by defendant's vehicle traveling in a southerly direction on a traffic lane which crossed this pedestrian crosswalk. As a result of this collision, plaintiff suffered a broken arm and brought suit against defendant seeking damages.

At the jury trial plaintiff testified that on June 19, 1972, at about 2 p.m., he was riding in the front passenger seat of a car being driven by Lefler when that car was involved in an accident with a car being driven by defendant. Lefler's car was traveling on a pedestrian crosswalk at a speed of about 10 miles per hour. The car had crossed two traffic lanes prior to the collision with defendant's vehicle. Plaintiff testified that he did not tell Lefler to drive on the crosswalk, nor did he comment on Lefler's doing so. Plaintiff first saw defendant's car at the moment of impact.

Lefler testified that he was driving east on the pedestrian crosswalk and had crossed two traffic aisles before the accident; that plaintiff did not tell him to drive on the crosswalk; that he was traveling at about eight miles per hour when he came to the traffic aisle where the collision took place; that he had looked to the north when he was about 10 feet from the middle of the intersection and claimed he could see about 20 feet; that he looked again when the car was about two or three feet from the intersection and saw defendant's white car coming toward them; and that he put his foot on the brake but did not have time to stop and did not blow his horn. He testified that he could not estimate defendant's speed but thought her car was traveling rather fast. Lefler could not recall making any comment, in the presence of the defendant, to the police after the accident.

Defendant testified that on the afternoon in question, she was driving her father's automobile in a southerly direction in a traffic lane of the Cermak Shopping Plaza. Defendant noted that there was a steady line of parked cars to her right as she drove down the aisle; that she was traveling at a speed of about 10 to 15 miles per hour; and that about 20 feet from the pedestrian crossing she noticed diagonal lines painted on the pavement and could see only about one or two feet to the east and west at that point. Defendant further testified that as the front of her car entered the crosswalk, she allegedly saw a blur out of the corner of her eye about five feet from her car; that she did not see any auto prior to the impact; that she had no time to apply her brakes, and the right front of her car collided with the left front of the Lefler vehicle; and that her car traveled about 20 feet southeast after the impact, and the front of her vehicle struck a parked car. Defendant also testified that Lefler had admitted liability for the accident to a police officer.

David Alesky, defendant's brother, testified he was riding in the car driven by his sister at the time of the accident. He claimed that she was traveling at a speed of five to 10 miles per hour; and that the Lefler car was traveling at a speed of 35 miles per hour.

At the close of the evidence, the trial court denied plaintiff's motion for a directed verdict as to liability, and directed a verdict for plaintiff on the issue of contributory negligence. In closing argument, defendant's attorney argued that the negligence of Lefler was the sole cause of plaintiff's injuries and implied that plaintiff contributed to that negligence. Plaintiff's attorney objected to this argument. The trial court did not rule on the objection and ordered the parties to proceed.

The jury returned a verdict for defendant. Plaintiff moved for a new trial urging that the verdict was contrary to the law and the evidence; that the defendant's closing argument was inflammatory and prejudicial, and that this argument created an inference in the minds of the jury that the negligence of the driver was imputable to plaintiff; and finally, that the verdict was contrary to the preponderance of the evidence. The trial court allowed this motion, set aside the jury verdict, and ordered a new trial, stating that "* * * I think the negligence of the defendant in this case by her own statement is compelling."

I.

Our review of the case law in this State on motions for new trial in civil cases leads us to the conclusion that some confusion exists. (See Houston v. Zimmerman (4th Dist. 1975), 30 Ill. App.3d 425, 333 N.E.2d 472.) This confusion has been created by the lack of consistency in articulating the appropriate standard to be used by the trial court on motions for new trial and also by reviewing courts. Hoping not to add to the confusion, we shall attempt to shed some light on the problem for the future. We shall first address ourselves to the standard to be applied by the trial court on motions for new trial where no procedural error is alleged, but the motion is predicated upon the alleged sufficiency of the evidence to support the verdict or finding.

A.

• 1 In a jury trial of a civil matter, it is well settled that the standard used by the jury is the preponderance of the evidence. 18 Ill. L. & Prac. Evidence § 345 (1956); see Reivitz v. Chicago Rapid Transit Co. (1927), 327 Ill. 207, 210, 158 N.E. 380.

However, our research reveals that it is not clear what standard the trial court may apply to set aside a jury verdict and order a new trial. Various criteria such as weight of the evidence (Payne v. Kingsley (2nd Dist. 1965), 59 Ill. App.2d 245, 252, 207 N.E.2d 177), preponderance of the evidence (Potter v. Ace Auto Parts & Wreckers, Inc. (1st Dist. 1964), 49 Ill. App.2d 354, 356, 199 N.E.2d 618), and manifest weight of the evidence have been used as the standard of review by the trial court within this State (Houston v. Zimmerman, at 429). Also see Stringer v. McHugh (5th Dist. 1975), 31 Ill. App.3d 720, 722, 334 N.E.2d 311; 66 C.J.S. New Trial § 70 (1950); 58 Am.Jur.2d New Trial §§ 137-144 (1971); 28 Ill. L. & Prac. New Trial § 26 (1957).

Preponderance of the evidence, as defined in Moss-American, Inc. v. Fair Employment Practices Com. (5th Dist. 1974), 22 Ill. App.3d 248, 259, 317 N.E.2d 343, means:

"[T]he greater weight of the evidence, not necessarily in numbers of witnesses, but in merit and worth that which has more evidence for it than against it is said to be proven by a preponderance. Preponderance of the evidence is sufficient if it inclines an ...


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