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Zerbenski v. Tagliarino

OPINION FILED DECEMBER 6, 1978.

JOAN ZERBENSKI ET AL., PLAINTIFFS-APPELLEES,

v.

VINCENT A. TAGLIARINO, DEFENDANT-APPELLANT. — (NORMAN F. KOEHRING, DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS ROSENBERG, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 25, 1979.

This is an action to recover damages for injuries resulting from an automobile accident which occurred on March 17, 1972.

On March 10, 1977, a jury in the Circuit Court of Cook County returned a verdict against both defendants. The jury awarded Joan Zerbenski $90,000 and Walter Zerbenski $5,000. Judgment was entered against both defendants. Defendant Tagliarino presented a post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. This motion was denied and Tagliarino appealed the judgment order. Koehring is not a party to this appeal.

The plaintiff, Joan Zerbenski, suffered personal injuries when her automobile was struck head-on by the vehicle of defendant Norman F. Koehring. Her husband sought recovery for the loss of consortium. The plaintiffs alleged that Koehring drove his automobile into the wrong side of the road and struck the plaintiffs' car head on. In addition, they alleged that the negligent driving of Tagliarino was a proximate cause of the accident.

The accident occurred on March 17, 1972, at approximately 6:30 p.m. on Illinois Route 20 (Lake Street), a four-lane highway in Hanover Park, Illinois, near its intersection with Greenbrook Drive, an entranceway into a subdivision. Joan Zerbenski was driving her car in an easterly direction. Four vehicles were traveling on Route 20 in a westerly direction in the inner lane next to the center line. An unidentified driver operated the first vehicle, a Rambler. Tagliarino and his wife occupied the second automobile. The third vehicle was operated by Koehring. Following Koehring's automobile was Anthony Cristofaro, who appeared as a witness at the trial. Cristofaro testified that all four vehicles were proceeding at a speed of 50 miles an hour.

As the Rambler approached the intersection with Greenbrook Drive, the driver signaled for a left turn. At that time Cristofaro moved into the right lane. Tagliarino testified that he observed the signal, removed his foot from the accelerator and was prepared to stop if necessary. There is a conflict in the testimony of Tagliarino and Cristofaro as to the subsequent events.

Tagliarino testified that Koehring had been tailgating him for over one block and that after he removed his foot from the accelerator, Koehring struck the rear of his automobile. Immediately thereafter he heard a loud crash which was Koehring's vehicle colliding with the plaintiff's car. Tagliarino testified that at the time of the impact there was a distance of three to five cars between his vehicle and the Rambler. In addition, he stated that he did not apply his brakes before Koehring hit his car. Melba Tagliarino's testimony supported her husband's explanation of the accident.

Cristofaro, on the other hand, testified that the Rambler started to slow down to make the left turn but neither Tagliarino nor Koehring reduced his speed. Cristofaro stated that all of a sudden Tagliarino slammed on his brakes. Thereafter, Koehring applied his brakes, attempted to move into the right lane which was occupied by Cristofaro, then swerved across the center lane hitting the plaintiff's car head-on. According to Cristofaro's version of the events, Koehring's automobile hit the left rear of Tagliarino's vehicle after the collision of Koehring's car with the plaintiff's car.

The issues presented for review are:

"1. The plaintiffs failed to prove any negligence on the part of Tagliarino so that the trial court should have directed a verdict in his favor.

2. The plaintiffs failed to prove that any action by Tagliarino was the proximate cause of the plaintiff's injury so that the trial court should have directed a verdict in his favor.

3. The verdict against Tagliarino was the result of cumulative trial errors."

I

• 1, 2 The defendant alleges that the trial court should have directed a verdict in his favor because the plaintiffs failed to prove any act of negligence. In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the supreme court established the rule that directed verdicts should be entered only in those cases in which all of the evidence, when viewed most favorably to the opponent, so overwhelmingly favors a movant that no contrary verdict based on that evidence could ever stand. By applying this standard to the testimony in this case, we find that there ...


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