APPEAL from the Circuit Court of Cook County; the Hon. LIONEL
BERC, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
In this matter, a judgment was entered in favor of defendant at the close of plaintiff's case in a non-jury negligence action. The issue presented on appeal is whether the judgment was against the manifest weight of the evidence.
Plaintiff's complaint alleged that it was in the exercise of ordinary care for the safety of a certain expressway light pole which was struck and damaged by defendant's automobile; that defendant breached her duty to exercise ordinary care by operating her car at an excessive speed, by failing to keep a proper lookout, by failing to remain in the proper lane of travel, by failing to have her brakes in proper working order, by disregarding traffic signs and signals, and by otherwise operating her vehicle in a negligent and careless manner. It was also alleged that the damage to the pole was the direct and proximate result of one of the foregoing acts or omissions.
In her answer, defendant admitted she owned and operated the automobile which struck the light pole in question. She denied, however, that she was negligent and specifically stated "that the collision which occurred was the result of plaintiff's negligence in allowing a hole to remain in the highway which caused defendant's vehicle to go out of control into the light pole upon striking the hole."
Defendant, called as a section 60 adverse witness, testified that she was exiting the Edens Expressway at Lake Street when her car struck the light pole in question which was located two or three feet from the pavement. The exit ramp curved toward Lake Street and was wet from a prior rain. In answer to a question as to the speed of her car when it struck the light pole, she said, "I was braking, it was sliding."
The investigating police officer, called by plaintiff, testified that the road surface of the exit ramp was in good condition; that defendant told him her car went off the road and hit the light pole but that she did not know how it happened, and that she said nothing about a hole in the pavement. When the officer was asked about the condition of the tires on defendant's car, he responded that the two front tires were completely bald. Defendant's objection to this testimony was sustained.
At the close of plaintiff's case, after it found for defendant, the trial court stated as the basis of its decision that plaintiff did not establish its case by the preponderance of the evidence.
1 No appellee brief has been filed, but we have decided to consider this appeal on its merits under the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493, in which it was said "[a] considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal" (63 Ill.2d 128, 131, 345 N.E.2d 493, 494), and "if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record the judgment of the trial court may be reversed" (63 Ill.2d 128, 133, 345 N.E.2d 493, 495).
Plaintiff initially contends the court used a preponderance of the evidence standard and that if it had applied the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504), the judgment would not have been entered because, under Pedrick, the evidence when considered in its aspect most favorable to plaintiff, did not so overwhelmingly favor defendant that no contrary verdict passed on that evidence could ever stand.
We note, however, that in City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 349 N.E.2d 399, there was clarification of the procedure to be followed in reviewing the decision of a trial court granting a judgment in favor of defendant. That court stated:
"The Pedrick rule was designed to prevent a trial judge from assuming the duties of the trier of fact in a jury case. In a trial without a jury, however, the trial judge is the trier of fact, and the Pedrick rule is not applicable. In a case tried without a jury, the trial court is to weigh the evidence when a defendant moves for judgment at the close of the plaintiff's case. (Ill. Rev. Stat. 1973, ch. 110, par. 64(3).) In ruling on the defendant's motion for judgment, therefore, the judge had the duty to pass on the credibility of the witnesses and consider the weight and quality of the evidence. In weighing the evidence, the court had the responsibility to consider all the evidence, including any favorable to the defendant. The court was not to consider the evidence in the light most favorable to the plaintiff. Consequently, we will not reverse the decision of the trial court unless that decision is contrary to the manifest weight of the evidence." 64 Ill.2d 40, 57-58, 349 N.E.2d 399, 407-08.
Thus, we will apply the manifest weight standard required by City of Evanston in determining whether the trial court erred in its finding for defendant. In this regard, we note that in a negligence action there must be established a duty owed by defendant to plaintiff, a breach of that duty by defendant, and injury and/or damage proximately resulting to plaintiff from the breach. See Rios v. Sifuentes (1976), 38 Ill. App.3d 128, 347 N.E.2d 337; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App.3d 656, 299 N.E.2d 108.
In her answer, defendant admitted she had "a duty to use reasonable care so as not to cause damage to the property of others" and that "her car collided with the light pole." She denied, however, the allegations of her ...