APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE FAWELL, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 11, 1981.
The plaintiff, Michael Senase, was the driver and the plaintiff, Thomas McDonough, his passenger, when their motorcycle was struck by a van owned by the defendant, Timothy Johns, which rolled onto the street from a private driveway, injuring both plaintiffs. The accident happened on May 15, 1977, at approximately 2 a.m. Each filed suit against Johns based on both specific acts of negligence and res ipsa loquitur. The separate claims were consolidated for trial, in which the jury found in favor of the defendant. The plaintiffs appeal, contending that the court erred in refusing to direct a verdict in their favor, that the verdict, in any event, is against the manifest weight of the evidence, and, alternatively, that various trial errors denied them a fair trial.
Senase essentially testified that he was traveling at 20-25 miles per hour behind another motorcycle when out of the corner of his eye he saw something move. He testified first that he did not have time to apply his brakes and on further questioning that he applied them when 15 feet from the van. He was impeached by his deposition testimony that he was unable to do anything. He said that he had no time to take other evasive action and recalled nothing after the collision. He further said that he saw no lights on the object. McDonough also testified that the motorcycles were going 20-25 miles per hour and following within 200 feet of another cycle. He said there were no street lights, that both cycles had their lights on, and that he saw the van moving down the driveway when he was about 50 feet away. He said he saw no light in the van; that the motorcycle slowed down prior to the crash and moved to the right; and it was 5 feet to the right of the center line when it was hit, ending up under the rear of the van. He heard no motor running except those of the cycles, and heard no car door shut until the police arrived.
McDonough investigated the driveway and testified that it was 36 feet from the garage to the sidewalk in two pieces, nearly level at the garage for 18 feet and then sloped down at about 15-20 degrees for 18 feet with a gap between the two pieces.
A pedestrian saw the two cycles go by, at reasonable speed, 200 to 300 feet apart. He said he heard no other motors. He heard the crash and looked up. At that time he was about 100-150 feet from the accident. He said the van was always in sight but that he saw no one inside or exiting from it and noticed no lights in the van.
A passenger on the first motorcycle, which was not involved in the accident, testified that there were no street lights and that both motorcycles had their headlights on and were traveling 20-25 miles per hour. She said that she and her driver heard a noise and returned in 8 to 10 seconds to the scene of the accident. She did not hear a van engine start, saw no one around the van other than the victims at this time. She testified she did not go near the van door and did not notice a light in the van. The driver of the motorcycle on which she was riding also testified to similar circumstances. He said that after turning back to the scene he went for aid at a nearby house, returned to the van and opened the door. He noted that the door was on half-latch. The dome light was on after he opened the door but he was not sure if it had been on before; the keys were in the ignition and the doors were unlocked. He testified that he said to the defendant words to the effect that the guy got away and that defendant responded the van must have rolled down the driveway.
Defendant testified that he was the owner of the van, which had well over 100,000 miles on it at the time. He did all the maintenance on the vehicle himself. The van had last been carefully checked out, including the brakes, at Christmas. He said he drove into the driveway to visit a friend at the house, parked in front of the garage door, turned off the ignition, set the emergency brake, and left the car in gear. He said the emergency brake made a clicking sound when set. He did not lock the van and left the keys in the ignition. He described the grade of the driveway as 6 to 7%, the part by the garage was almost level and the remainder at a sharper angle. About two hours later he said he was informed of the accident by the driver of the first motorcycle. He went out into the street to give first aid, ran back to call the operator, then returned to the victims. He said he saw no one suspicious near the van during this time. He testified that when he first left the house he noticed that the dome light was on in the van and the door was open a bit. He said that the dome light can only be activated by a switch. He remembered what he thought was a girl's voice telling him words to the effect that the guy in the van got away. He responded that it was his van and must have rolled down the driveway. After the ambulance came to the scene defendant went to the van and saw that the parking brake had been manually disengaged and that the gear shift was not in reverse.
A friend of the defendant who had been a passenger in the van said that when the van stopped she got out and walked around the front of it to the house door. She did not notice if defendant set the brakes and did not hear a clicking noise. She said that when they parked the dome light was off but after the accident when she went to the front porch she saw that the dome light was on in the van. Another friend of the defendant at whose house he was visiting said that after the accident the van door was ajar and the inside lights were on.
A directed verdict in favor of the plaintiff, McDonough, was granted on the issue of contributory negligence; the jury also found that the plaintiff, Senase, was not contributorily negligent.
• 1, 2 Plaintiffs first argue that the trial judge should have granted a directed verdict in their favor based on res ipsa loquitur. This doctrine allows proof of negligence by circumstantial evidence when the direct evidence concerning the cause of the injury is primarily within the knowledge and control of the defendant. (See, e.g., Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App.3d 656, 671.) The defendant argues res ipsa loquitur is inapplicable here because the van was not within the defendant's control, some two hours having elapsed since the vehicle had been left in a parked position in the driveway with its brake set. However, proof of control does not require proof of actual physical control at the time of the accident "if the instrumentality or dangerous agency is one which it is defendant's responsibility to maintain at all times * * *." (Metz, at 450; Cobb v. Marshall Field & Co. (1959), 22 Ill. App.2d 143, 153-54; Ostendorf v. Brewer (1977), 51 Ill. App.3d 1009, 1012.) A basic showing that defendant had parted with control of the instrumentality before harm struck is in itself insufficient to defeat a res ipsa claim. (May v. Columbian Rope Co. (1963), 40 Ill. App.2d 264, 271-73.) Since defendant, as owner of the van, had the duty to maintain it, he had control of the van for res ipsa purposes.
• 3 Nevertheless res ipsa is merely an inference of negligence arising from circumstantial evidence; it may be rebutted by proof of defendant's due care (Cobb, at 158), or by proof that the accident was caused by the intervention of someone or something else. See, e.g., Metz v. Central Illinois Electric & Gas Co., at 452. See also House v. Stocker (1975), 34 Ill. App.3d 740, 742.
• 4 Here, defendant has introduced proof of his due care. He testified that he set the parking brake and put the car in gear. He also introduced circumstantial evidence that the accident was caused by the intervention of third parties. While the evidence is close on this point, viewing it most favorably to the defendant there is some evidence that a third party may have caused the van to roll out into the street. Defendant stated he left the van in first gear, set the brake and firmly closed the door. There were no lights on in the van at that time. After the accident there was evidence that the van was in reverse, the brake manually disengaged and the door open. In addition, the dome light in the van was on, and it could only be activated by a manual switch. The ...