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Barrick v. Grimes

November 22, 1999

DOCIA M. BARRICK, PLAINTIFF-COUNTERDEFENDANT-APPELLANT,
V.
FRANCIS E. GRIMES, DEFENDANT-APPELLEE,
AND
WILLS TRUCKING, INC., DEFENDANT-COUNTERPLAINTIFF-APPELLEE.



Appeal from Circuit Court of Logan County No. 95L50 Honorable Gerald G. Dehner, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

Plaintiff-counterdefendant Docia M. Barrick (plaintiff) appeals from the judgment of the circuit court of Logan County entered on a jury verdict in favor of defendants Francis E. Grimes (Grimes) and Wills Trucking, Inc. (Wills Trucking), in this negligence action based on an intersection collision between an automobile driven by plaintiff and a semi-tractor trailer driven by Grimes for Wills Trucking. Plaintiff argues this jury verdict is legally inconsistent with the verdict in her favor on Wills Trucking's counterclaim in negligence seeking to recover property damage to the truck. We affirm.

Because plaintiff does not argue that either verdict is against the manifest weight of the evidence, we need not discuss the evidence presented at trial. Suffice it to say that evidence was conflicting as to which driver had the red light at the time of the collision.

Equally important is the fact that plaintiff does not challenge the propriety of the jury instructions in this appeal. Some of the jury instructions are particularly relevant to this court's analysis. One of the jury instructions given in this case advised the jury that plaintiff claimed defendants were negligent in failing to (1) keep a proper lookout for other vehicles and (2) obey a traffic control device. That same instruction informed the jury that defendants claimed plaintiff was negligent by (1) operating her motor vehicle at an excessive rate of speed, (2) failing to reduce the speed of her vehicle to avoid a collision, (3) failing to exercise safe and proper control of her motor vehicle, (4) failing to keep a safe and proper lookout for other vehicles, and (5) failing to obey a traffic control device.

The jurors were told (1) it was their duty to determine the facts from the evidence produced in open court (Illinois Pattern Jury Instructions, Civil, No. 1.01 (3d ed. 1995) (hereinafter IPI Civil 3d)); (2) in determining whether any proposition was proved, they were to consider all the evidence regardless of which party produced it (IPI Civil 3d No. 1.02); (3) facts could be proved by circumstantial evidence giving rise to an inference of the truth of the fact sought to be proved (IPI Civil 3d No. 1.03); (4) they were to serve as Judges of the credibility of witnesses and the weight to be given their testimony (IPI Civil 3d No. 2.01); and (5) in deciding whether a fact had been proved, they could consider the number of witnesses testifying on one side or the other as to that fact, but the number of witnesses alone was not conclusive if the testimony of the lesser number was more convincing (IPI Civil 3d No. 2.07). The jury was instructed it was the duty of a defendant to use ordinary care for the safety of a plaintiff and plaintiff's property in each of these cases and that meant a defendant had a duty to be free from negligence. IPI Civil 3d No. 10.04. The terms "negligence," "ordinary care," and "proximate cause" were defined for the jury. IPI Civil 3d Nos. 10.01, 10.02, 15.01.

The jurors were also instructed:

"When I say that a party has the burden of proof on any proposition, or use the expression 'if you find,' or 'if you decide,' I mean you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true." IPI Civil 3d No. 21.01.

In instructing the jury, the trial court explained that, because of the presence of a complaint and counterclaim, four results were possible in this case, one possibility being that the jury could find against both the plaintiff on the complaint and against Wills Trucking on its counterclaim. See IPI Civil 3d No. B21.04 (modified). The instruction was given without objection.

The same modified instruction informed the jury that, in order for plaintiff to recover, she had the burden of proving the following propositions:

"a. First, that the defendants, Francis E. Grimes and Wills Trucking, Inc., acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendants were negligent;

b. Second, that Docia Barrick was injured and her property was damaged;

c. Third, that the negligence of the defendants was a proximate cause of the injury to the plaintiff and the damage to the plaintiff's property." See IPI Civil 3d No. B21.04. The jury was told that, if it found all of those propositions proved, it should return a verdict for plaintiff, but if it found any of those propositions had not been proved, then the verdict should be for defendants.

Similarly, in the same modified instruction, the jury was told that Wells Trucking had the burden of proving the following propositions to recover on the counterclaim:

"a. First, that the plaintiff, Docia Barrick, acted or failed to act in one of the ways claimed by the defendant as stated to you in these instructions and that in so acting ...


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