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03/16/88 General A. Underwood, v. Charles R. Baker Et Al.

March 16, 1988

GENERAL A. UNDERWOOD, PLAINTIFF-APPELLANT

v.

CHARLES R. BAKER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

522 N.E.2d 677, 168 Ill. App. 3d 223, 119 Ill. Dec. 15 1988.IL.359

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff General A. Underwood sought to recover damages sustained Fin a rear-end collision. Plaintiff appeals from trial court orders granting defendant U-Haul's pretrial motion to dismiss it as a party, and directing the jury to enter a verdict in favor of defendant Charles R. Baker at the close of plaintiff's evidence.

On January 5, 1987, the trial court dismissed U-Haul as a party and gave it seven days to file an affidavit in support of the motion to dismiss.

On January 6, 1987, at trial, plaintiff testified that on March 10, 1981, he was driving northbound in his taxi when he stopped in the curb lane at 6925 South State Street in Chicago. A truck then "came along and knocked me up on the sidewalk." Plaintiff looked up and saw it was a U-Haul truck. He saw "the truck fixing to leave," so he exited the cab and walked over to the truck, which was stopped with traffic in the other lane of the northbound traffic. Plaintiff told the driver of the U-Haul truck that he had just struck plaintiff's cab. "I ran up there and I told him that he just hit me, and he said, 'Hit you?'" Plaintiff then asked a passerby to call the police.

Following plaintiff's testimony on January 6, 1987, the court directed a verdict in favor of Baker and against plaintiff, and entered judgment on the verdict. On April 15, 1987, the court denied plaintiff's post-trial motion to vacate the January 5 and January 6 orders.

Plaintiff first contends that the trial court erred in directing a verdict in favor of Baker. A verdict may not be directed unless 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. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) This rule must be applied with great deference to the jury's primary and unique role permitting it to draw reasonable inferences from the evidence. (Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 371 N.E.2d 1240.) Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.) The fact that Baker did not appear at trial and offered no evidence does not require the trial court to find that any evidence put forth by plaintiff established the manifest weight against which a contrary verdict could not stand. Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 371 N.E.2d 1240.

Our question on review, therefore, is limited to whether the testimony presented at trial and the admissions in Baker's answer established sufficient evidence which would permit the case to go to the jury.

Plaintiff's pleadings allege that on March 10, 1981, his vehicle was struck by a U-Haul truck driven by Baker. Both vehicles were in the northbound lanes of State Street near 70th Street.

Baker did not appear at trial, failed to appear for a deposition, and did not answer interrogatories, but his answer to the complaint contained several key admissions. It states:

"He admits that at said time and place he operated a certain truck at or near the intersection of 70th and State ...


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