author: MR. JUSTICE MURPHY

text:
    Walter P. Frick, Plaintiff-Appellant, v. O’Hare-Chicago Corporation, Defendant-Appellee, and Chell & Anderson, Inc., a Corporation, Defendant.
    Gen. No. 50,717.
    First District, First Division.
    May 9, 1966.

      Francis A. Boyle and Milton Yondorf, of Chicago, for appellant.
    Jacobs and McKenna, of Chicago (John C. Bartler and Barry L. Kroll, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a Scaffold Act case, in which plaintiff was injured when he fell from an unsecured plank, which was on top of a wooden form into which concrete was to be poured. A summary judgment was entered in favor of the defendant owner. The action against the defendant contractor is still pending. The trial court found there was no just reason for delaying enforcement or appeal from the judgment order, and plaintiff appeals.

In a summary judgment, the right of the moving party should be free from doubt, and the whole record must be considered. If, upon an examination of the pleadings, depositions, affidavits and admissions on file, it can be fairly said that there is a genuine issue as to any material fact, a motion for a summary judgment should be denied. On the other hand, where the record shows there is no triable issue of fact, a summary judgment will be granted. People ex rel. Sharp v. City of Chicago, 13 Ill2d 157, 160, 161, 148 NE2d 481 (1958) ; Tuohey v. Yellow Cab Co., 33 Ill App2d 180, 183, 180 NE2d 691 (1962).

On November 29, 1961, plaintiff, Walter P. Frick, was working as an electrician for an electrical contractor, Henry Newgard & Company, on an addition to the O’Hare Inn in DesPlaines, Illinois. Defendant O’Hare-Chicago Corporation was the owner of the premises. Defendant Chell & Anderson, Inc., was on the job site under a contract for “masonry and carpentry work.”

On the day of the occurrence, plaintiff was informed by the foreman of defendant Chell & Anderson that plaintiff should take measurements for an electrical wire conduit pipe, which was to be placed in a form into which concrete was to be poured on the following day. The form was in an excavation and was made of 1-inch plywood with 2 x 4’s on top, secured by braces to the side of the form. An unsecured 2x6 plank was on top of and parallel with the 2 x 4’s. The form was 14 feet high from the basement level, and its top was reached by walking on a plank from the unexcavated ground.

Plaintiff took the measurements while standing on the 2x6 plank, and as he turned to leave, the board slipped and he fell to the ground. Then, to get out of the basement, he used “a big ladder that a lot of workers used to get in and out of the basement.”

The complaint had two counts, the first of which was based on common-law negligence. The second count, based on the Structural Work Act (Ill Rev Stats 1963, c 48, §§ 60-69) alleges that defendant O’Hare “owned, managed, and controlled” the premises and “hired as their agents and servants, the defendant, Chell and Anderson, Inc., a corporation, to do repairs and alterations” on the building, and while acting both on their own behalf and as agents and servants of defendant O’Hare, defendant Chell & Anderson “constructed a scaffold, support or stay on said premises,” which was “negligently erected and maintained,” as a result of which plaintiff was injured.

The answer of defendant O’Hare admits ownership of the premises, but (1) denies that it managed, controlled or was in possession of that portion of the premises involved ; and (2) denies that Chell & Anderson were hired as agents and servants of O’Hare or that they constructed a scaffold or support as agents and servants of O’Hare. O’Hare further denies “that the device referred to in plaintiff’s complaint was a scaffold, support or stay.”

The answer of defendant Chell & Anderson admits that it was hired to do certain repair work in the building and denies that it was the agent or servant of defendant O’Hare. It further denies that plaintiff was lawfully or rightfully on the scaffold alleged and denies that there was anything wrong or improper with the scaffold.

The summary judgment in favor of defendant O’Hare was based upon (1) an affidavit by the president of defendant O’Hare that “during the construction of the aforesaid addition to the O’Hare Inn, the O’Hare-Chicago Corporation had no one on the premises, either supervising, directing or controlling the construction or the method in which the construction was done”; (2) an affidavit which set forth extracts from defendant’s discovery deposition relating to the occurrence and the nature of the alleged scaffold; (3) a counteraffidavit which set forth extracts from the contract between defendant owner O’Hare and defendant contractor Chell & Anderson; and (4) interrogatories and answers.

During the pendency of the motion for summary judgment, the court entered orders which (1) struck a counteraffidavit by plaintiff, and (2) sustained objections by both defendants to interrogatories filed by plaintiff to be answered by both defendants. Plaintiff has also appealed from these orders.

Considered first is defendant’s contention that the plank from which plaintiff fell was not “a ‘scaffold’ within the meaning of the Structural Work Act.” Cases cited include Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400 (1961); Welk v. Jackson, Architectural Iron Works, 184 NY 519, 76 NE 1116 (1906); Broderick v. Cauldwell-Wingate Co., 301 NY 182, 93 NE2d 629 (1950); Remelius v. Corbetta Const. Co., Inc., 265 App Div 827, 37 NYS2d 843 (1942), and others. In Thon v. Johnson, plaintiff was injured when he fell from an erected form into which concrete was to be poured. The court said (p 322):

“. . . we do not feel that the cement form upon which plaintiff stood in the case at bar can be considered to be a scaffold within the meaning of the statute. We are aware of the rule that our statute should be liberally construed, but if the statute were construed so as to cover the concrete form involved in this case, such a construction of the statute would be equivalent to holding that each and every place where a workman chooses to stand thereby becomes a scaffold within the meaning of the statute. . . . On the contrary, the authorities discussed herein appear to be quite pertinent and lend support to our conclusion that the concrete form involved in this case was not a scaffold within the meaning of the statute.”

The authorities referred to in Thon v. Johnson include Haughey v. Thatcher, 89 App Div 375, 85 NYS 935, where plaintiff stood on a temporary arch structure because the work he was engaged in could be done more easily and in less time. The men working on the arches were furnished with scaffolding, but they stepped on the temporary arches to sustain their weight for personal convenience in working.

In Ericson v. Bradley Contracting Co., 150 NYS 169, where a carpenter stood on a water pipe which gave way, the court said (p 170):

“A temporary resting place for footing or support is incidental to the performance of the work, and to call such a place a ‘scaffold’ is a wrench, not only of the language, but of the intent, of the Legislature.”

In Adelstein v. Roebling Const. Co., 95 Misc 125, 159 NYS 36, an ironworker was injured when he stepped on a concrete form, and the court said (p 38):

“The ‘form’ which gave way below the plaintiff’s weight . . . was not intended, designed, or constructed for the purpose of supporting a workman in any event or on any occasion. It was used and intended to be used exclusively as a framework to contain and hold, while hardening, a section of concrete which, when ‘set’ became a part of the floor. Even if the defendant . . . either permitted or authorized persons occasionally to step upon or pass over this ‘form,’ . . . that would not change the character of the structure into a scaffold.”

Defendant O’Hare, in commenting on plaintiff’s authorities in which planking, erected as platforms to work from, were held to be scaffolds, admits “if planking is erected as a platform, it is a scaffold. This is true whether or not the planks find their foundation on permanent parts of the structure or otherwise.” Defendant argues, however, “these cases are inapposite to the one at bar because here plaintiff was not working on planking built as a platform but, rather, he was standing on the form itself of which the 2x6 plank was merely a covering.”

Defendant’s authorities are not persuasive here because of factual differences. In the instant case, the 2 x 4’s attached to the top of the form, and the 2x6 plank resting on top of them, and used by plaintiff, must have been placed there to serve some purpose. They were in position before plaintiff was instructed to take his measurements, and the extracts taken from plaintiff’s deposition show that “everybody walked on 2 x 4 boards constituting the top of the form and on the 2x6 board which was on top of these.” The form was 14 feet high, and as the measurements had to be taken from its top, plaintiff had to stand on something, and the record indicates that the 2x6 plank was the only platform available to him. On trial, in the absence of contrary evidence, the testimony of plaintiff, if consistent with the extracts taken from his deposition, should be sufficient to show that the plank was intended to be and was used as a scaffold, support or mechanical contrivance in connection with construction of the addition, and within the purview of the Scaffold Act. See Oldham v. Kubinski, 37 Ill App2d 65, 85, 185 NE2d 270 (1962).

The basic question on this appeal is: Does an examination of this entire record show fairly and without doubt that there is no genuine issue as to whether defendant O’Hare came within the Structural Work Act term of “having charge of” the construction work, during the performance of which plaintiff was injured?

It is unnecessary to review all of the authorities cited by both sides which have construed the statutory import of these words. The recent pronouncements of our Supreme Court in Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965), are controlling on this issue, and it is said (pp 321, 322):

“The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. . . . the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.
“In the Gannon case (22 Ill2d 305,) where it was expressly noted that the owner involved had ‘exercised no control over the manner in which the work was being done/ (p 307,) we held that an owner must have some direct connection with the operations, over and above mere ownership or the employment of an independent contractor, and indicated that the question whether the particular connections and activities in a given case were such that an owner could be deemed to have charge was a question of fact for the jury to determine. Nothing in Gannon suggests or holds that either the exercise of supervision and control, or the retention of the right to do so, are essential ingredients for having charge. And manifestly, the plain language of the statute does not limit duty and liability to owners retaining control and supervision of the work as the instruction suggests. The inclusion of the words ‘by retaining supervision and control of the work’ placed a greater burden on plaintiff than the law required and was improper.”

Defendant’s answer and supporting affidavits, at the most, deny that defendant O’Hare had anyone “on the premises, either supervising, directing or controlling the construction or the method in which the construction was done.” Plaintiff’s counteraffidavit, which we believe should have been considered by the trial court, states:

“2. That employees or officers or both of O’Hare-Chicago Corporation, which had contracted for this addition, were present from time to time at the construction site, inspected the construction work and the progress of construction, were in charge thereof and were in a position to issue orders as to how the construction should proceed if they felt it was not proceeding in the way it should proceed or if anything was not safe or in proper order. That this authority and power extended not only as to what work was to be done, and as to the quality of the work to be done but also as to the manner in which it was to be done. . . .”

Conceding plaintiff received no direct instructions from defendant O’Hare or its agents, plaintiff’s deposition extracts, set forth in defendant O’Hare’s affidavit, contain nothing which militates against the foregoing counteraffidavit of plaintiff.

Defendant O’Hare’s statements that it had no control or supervision, whether conclusions or ultimate facts, are disputed by plaintiff’s counteraffidavit. From these affidavits, which we consider in their factual import, no one can fairly say that this record shows without doubt that defendant O’Hare, as owner, does not come within the provisions of the Scaffold Act. Moreover, even if undisputed, defendant’s affidavit is not sufficient, standing alone, to show the defendant is without the scope of the Act. As said in Larson v. Commonwealth Edison Co. (p 322):

“. . . while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute.”

This entire record does show a genuine issue exists as to whether defendant O’Hare had “some direct connection with the operations, over and above mere ownership or the employment of an independent contractor,” and indicates that “the question whether the particular connections and activities” in this case were such that defendant O’Hare could be deemed to have charge was a question of fact for a jury to determine. (Larson v. Commonwealth Edison Co., (p 322).) Therefore, a genuine issue of a material fact being present, the summary judgment should not have been granted here.

Because of the foregoing determination, we have not considered the propriety of the trial court’s orders which sustained objections to many of plaintiff’s interrogatories. We suggest that leave be given to plaintiff to submit new interrogatories grounded on this opinion.

For the reasons given, the summary judgment in favor of defendant O’Hare is reversed and the cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BRYANT

license: Public Domain

text:
    Frank J. Pellico, et al., Plaintiffs-Appellants, v. Earl Jackson, George Boese, Sam Klevneo, a/k/a Sam Kleveno, d/b/a The Ragdoll Tavern, Shirley Oddo, d/b/a Oddo’s Restaurant and Lounge, Carmen Trimarco and Frances Trimarco, Defendants-Appellees. Earl Jackson, Counter-Plaintiff, and James Erickson, Counter-Plaintiff-Appellee, v. Frank J. Pellico, Counter-Defendant-Appellant.
    Gen. No. 49,919.
    First District, Second Division.
    May 10, 1966.
    Rehearing denied June 7,1966.

      Epton, McCarthy, Bohling & Druth and Gerard A. Serritella, of Chicago (Bernard E. Epton, Alfred S. Druth, Gerald M. Chapman and Donald Segal, of counsel), for appellants.
    Orner & Wasserman, of Chicago (Norton Wasserman, of counsel), for defendants-appellees.
    H. P. Hutul, of Chicago (Arthur M. Gorov, of counsel), for counter-plaintiff-appellee, James Erickson, and defendant-appellee, Earl Jackson.
    Lloyd P. Douglas and Sydney W. Hollander, of Chicago, for defendants-appellees, George Boese and Sam Kleveno, d/b/a The Ragdoll Tavern.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from a judgment entered March 13, 1964, in the Circuit Court of Cook County following a jury verdict which found for the plaintiff Stephanie Pellico in the sum of $10,000 and which found for the counter-plaintiff James Erickson in the sum of $15,000.

The complaint as amended charged the defendant Earl Jackson with the wilful and wanton, careless and improper operation of his automobile which, it is alleged, resulted in an automobile accident in which the plaintiffs Frank J. Pellico and his wife, Stephanie, were injured. The plaintiffs alleged that they exercised due care for their own safety.

Other parties brought in as defendants in this action were George Boese and Sam Kleveno, operators of a tavern known as The Ragdoll Tavern and the Oak Park National Bank as trustee of a land trust which held title to the property on which the Ragdoll Tavern was located. Other party defendants were Shirley Oddo, the operator of a tavern known as Oddo’s Restaurant and Lounge, and Carmen and Frances Trimarco as owners of the property on which Oddo’s Restaurant and Lounge was located. It was alleged that the defendant Earl Jackson was sold or given intoxicating liquor at each of the above mentioned taverns which contributed to intoxication on his part, and that this intoxication contributed to the accident in which the plaintiffs were injured.

In a separate count, an action was brought by the plaintiffs Frank and Stephanie Pellico against one Dan Engels doing business as Engels Rambler Sales, in which it was alleged that Earl Jackson was an employee of Engels Rambler Sales, and that the automobile which the defendant Jackson was driving was owned by Engels Rambler Sales and was being driven with the consent of the owner and in the course of Jackson’s duties as an employee.

A counterclaim was filed in this suit by Earl Jackson and James Erickson, a passenger in the Jackson car. This counterclaim alleged that Erickson and Jackson were exercising due care for their own safety and that the accident was caused by the negligence of Frank J. Pellico.

The matter went to trial on March 4, 1964, on the issues as set forth in the complaint, countercomplaint and answers. The evidence brought out at the trial was as follows:

Frank J. Pellico, one of the original plaintiffs, testified that he was driving a 1959 Mercury automobile at about 4:45 p. m. the day of the accident, April 17, 1960. This was Easter Sunday, and Mr. and Mrs. Pellico were on their way back from his sister’s house when the accident occurred. He stated that he remembered that the streets were wet and that there was a very light drizzle. According to this witness, the traffic was “very, very light.”

This witness further testified, “I was traveling north on River Road near where it intersects with King Street; King Street comes in on River Road at about 3500 North. River Road was a four lane highway with double yellow lines running down the center. Two lanes go north, and the other two south. River Road has some windings, and turnings. Just prior to 3500 North there is a bend, or a curve, just before that intersection in River Road.

“I was traveling in the extreme right-hand, outside, or east, lane. If there was a curb, which there is not, that would be the curb lane. The traffic was very light, and that was the proper lane to be driving in at that time. . . .

“We proceeded that way because I had to make a right turn when I reached Lawrence to go to my home. Lawrence is about 46 or 4700 North.

“The point of impact would be approximately 10 or 11 blocks south of Lawrence. My windshield wipers may have been on. It was drizzling lightly. My radio was not on.

“As we were driving north, I made a comment to my wife. I noticed two or three cars going south, in the opposite direction. When we approached this area where there was a large body of water on the left side of River Road, which I would say was about 50, or maybe 100, feet in length, covering the complete west side of the road, the one lane, and maybe just a foot over the center lane, next to the double line, which gave the southbound traffic plenty of room to go by. There were barricades in front of that water, warning motorists of the water ahead. I saw the barricade. It was directly in the lane that had the main body of water in it, the extreme west lane. . . . The barricade was in the southbound curb lane on River Road. There was a lane open on River Road for southbound traffic. ... I saw cars coming in the southbound lane. . . .

“Prior to the accident, I saw the Jackson car approaching in that area. I was still proceeding in my east lane. I next saw the Jackson car when it was on my left side, after the impact. . . .”

On cross-examination Pellico said, “at this time, I do not recall whether I saw his car at any time within 50 feet of my car. ... I did not apply the brakes to my automobile at any time prior to this occurrence. ... I don’t recall whether, or not, I had the windshield wipers on the car. There being a light drizzle, I may have had them on. ... I don’t remember now. It’s possible that I may have had them on. My lights were not on. The day was overcast, but it was light enough so you did not need lights on.” This witness further testified that he did not have his car radio on at the time of the accident.

The next witness to testify was Stephanie Pellico, the other original plaintiff in the lawsuit. Concerning the accident, she testified, “I remember the lane in which my husband was driving after he crossed Belmont Avenue. [It] was the lane on the far east side.”

The following witness was one John Blaski. This witness stated that he was an amateur photographer. He took pictures of the scene of the accident shortly after it occurred. Blaski did not see the accident happen, but the photographs were taken before the automobiles involved were moved and even before the injured were taken away. This witness stated that he saw debris in the area of the Mercury, the Pellicos’ car. “The debris was sheet metal and glass. I cannot be certain whether there was any other debris. As to its location with reference to the lanes of traffic on River Road, it was pretty well all over. There was no particular spot where I noticed it. . . .

“The other car was south of the Mercury, between one and two car lengths. I could not say what lane of traffic the Plymouth was in. When I got out of my car before I took the pictures, I observed puddles of water on River Road. I would say the puddles covered about half of the paving on River Road on the west side. ... It [the water] covered the southbound lanes of traffic. It could have extended into the northbound lanes of traffic; I don’t know if it did.” After examining the pictures to refresh his recollection, the witness said he did not think the water extended into the northbound lanes, but he could not say positively. The witness identified part of a broken barricade in the picture.

James Erickson, one of the counter-plaintiffs and passenger in the automobile driven by Earl Jackson, was called as an adverse witness pursuant to section 60 of the Civil Practice Act, Ill Rev Stats, 1963, art 110, sec 60. He said that he knew Earl Jackson and had seen him the day before the accident at about 8:00 p. m. in the Ragdoll Tavern. Erickson continued, “When I entered the lounge, he was sitting at the bar. I wouldn’t know if he had a drink in front of him. ... I sat down about three or four stools away from Jackson. A few other fellows were sitting in between us. There was a bartender behind the bar. ... I can’t recall who the bartender was. The bartender served all of us. I don’t know whether he served Jackson or what. ... As to whether he served Jackson, I wasn’t drinking with Jackson. I don’t recall whether he was drinking at 8:00. . . . I sat four bar stools away from Jackson. ... I can’t recall whether Jackson was in the Ragdoll from 8:00 o’clock to 12:00 o’clock. . . . He might have went out between then. I saw him at the Ragdoll off and on between those times. I saw him sitting at the bar, standing up, and dancing. ... I saw him dancing with Mary Golich during that time. I do not recall how many times I saw him dancing with her. I don’t recall seeing him leave the Ragdoll during that time. . . .

“I saw Earl Jackson consume liquors in the Ragdoll between 8:00 to 12:00 o’clock. I saw him consume beer. The bartender . . . served it to him. To my knowledge, he did not consume any other type of alcoholic liquors. I wasn’t sitting with him. I don’t know how many beers he consumed.” This witness testified that he had consumed approximately 4 or 5 beers during the evening in question. He said that he did not notice anything unusual about Jackson that evening.

According to this witness, Jackson, Mary Lou Golich and he drove to Oddo’s Lounge. Jackson drove, and Erickson testified that he did not notice anything wrong with his driving. Once they arrived at Oddo’s, “I saw Jackson once in a while, off and on. There was a big crowd there. I saw Jackson off, and on, from 12:30 to 6:00 a. m. I saw Mary Golich off and on too. ... I can’t recall whether I saw Jackson dancing with Mary Golich because there were about fifty people there. I wasn’t especially looking for Jackson and Mary Lou. I can’t recall whether I bought any drinks for Jackson at Oddo’s, or whether he bought any drinks for me. I bought drinks for someone there. . . .

“All I drank all night was beer. ... I had some drinks after 12:00. Jackson had beer to drink with me at the Ragdoll after 12:00 o’clock. We were sitting together at the time. . . .

“I saw Jackson drinking beer at the Ragdoll. I don’t know how many beers I saw him drinking. I wasn’t counting. ... As to whether I saw Jackson drinking more than one beer after midnight at the Ragdoll, I don’t know. I wasn’t keeping track of how much he was drinking. Maybe he had one, two or three — that’s all.

“I couldn’t say that I was drinking with Jackson at Oddo’s because I was mostly by myself. I got there with Jackson. I can’t recall whether I saw him consume any alcoholic beverages or beer at Oddo’s. From the time I got there until 2:00 o’clock, I would see Jackson on the floor, dancing. That is about all I saw [of] him in Oddo’s. ... I did not see him at any time with a drink in his hand.”

Erickson then said that when they were finished at Oddo’s he, Jackson and Mary Lou Golich went to his house. This was about 7:00 o’clock in the morning. “At my house, I went to bed. I told Mary Lou that she could use my bedroom and Jackson, that he could use my mother’s bedroom, and I took the couch. I went to sleep.” The next time he saw them was around 4:00 o’clock that afternoon.

This witness said that when he got up that afternoon, the three of them had something to eat. He said that they did not have anything to drink. According to this witness, Earl Jackson was not drunk the afternoon of April 17,1960.

Jackson, Erickson and Miss Golich left Erickson’s home at about 4:80 that afternoon; Jackson had to be at work that evening as a bartender at the Ragdoll Tavern. Apparently he was a part-time bartender, and the evidence shows that he had not been working the night before. Erickson said that when the three of them left his house, the streets were wet. There had been a storm and there were tree limbs scattered on the roads. Erickson also mentioned that there were puddles “all over the road.”

“There was a [puddle of] water about 100 feet [long] from the north end to the south end in the middle of River Road. It covered the northbound [sic] and east side on the northbound, in the lane a little bit. Three lanes were covered with water. The northbound was all covered with water, and the southbound was one lane. It had a little water on it too. Both of the southbound lanes were covered by this hundred foot area of water that I am describing. There was water in the westernmost northbound lane from this puddle.

“I would say Jackson was going at 30 miles per hour at the time of the accident. The speed limit on River Road varies from 40 to 45 miles per hour. Jackson had his windshield wipers on. He was traveling in the inside lane, going south. That would be the lane next to the double yellow line in the center. ... I saw the puddle. I knew it was there before because I had been up and down the road before. That trip was the first time I saw it that day. I was about 100 to 150 feet from the puddle when I saw it. There were some barricades by the yellow line in the middle of River Road which described one-lane travel, one lane of traffic coming from the south and going to the north. The sign said, ‘One Lane of Traffic.’ When Jackson came upon the puddle and the sign, he started slowing up to about 10 to 15 miles per hour, and then the car died, or grounded, out. We had to make the turn to go through the single lane because we didn’t see any cars coming. There were no cars up ahead of us at all. Our car was facing southeast at the time of the accident. . . . When Jackson veered his car to the left, the car died out. I was watching, and Jackson was trying to start the car. The car was not in motion when he was trying to start it. I was watching Jackson start the car. As to whether I saw the other car that was involved in this collision, I just happened to glance up, and it looked like the car was coming right on me. . . .” The witness remembered nothing further until he awoke in the hospital.

Daniel Engels then took the stand and testified that he was Earl Jackson’s employer at the time of the accident. He stated that his company at no time furnished automobiles for its salesmen. The plaintiffs then dismissed the defendant Daniel Engels, doing business as Engels Rambler Sales, from the case with prejudice, by stipulation.

Eugene Oddo was called to testify under section 60 of the Civil Practice Act, supra. He testified that he managed Oddo’s Lounge and that the lounge was held in his wife’s name. He said he did not work on April 16, 1960. He said the first he heard of the accident was when he and his wife were served with summons on May 1, 1961 — slightly over a year following the occurrence.

Stephen Spanczak, the next witness to testify, was employed by the Village of Franklin Park as a police officer. He testified: “[On April 17, 1960] Patrolman Nooner, Sargeant [sic] John Brosman, Officer Duffy and I received notice of an accident at about 3500 River Road. I proceeded to the scene at once, traveling north on River Road from Belmont. The . . . center lane of northbound traffic was covered by water and both southbound lanes of traffic were covered with water. I saw barricades just prior to coming up to 3500 River Road. . . . The barricades for the northbound lane were in place, but the barricades for the southbound lane were all splintered, torn apart and knocked down. . . .

“At the scene of the accident I observed a 1955 Plymouth which was located in the water, partially over the southbound lane, facing in a northeast direction.” The 1955 Plymouth was practically facing the same as the other vehicle — the 1959 Mercury — and was approximately 10 or 15 feet west of the other car. “At that time it was raining and the pavement was wet. The lighting conditions were very good.”

This witness said he saw Mr. Erickson on the pavement of the road and while he was attending to him, noticed a very strong odor of alcohol about him. He also noticed that Jackson also had a very strong odor of alcohol on his breath and “he was not himself.” He did not notice the condition of Miss Golich.

On cross-examination, Officer Spanczak stated he used four photographs and the accident report to refresh his recollection before coming to court to testify. He identified the photographs and the report and stated that the report was in the same condition that it was in when he made it out, except for the exhibit mark. He then identified a verifax copy of the accident report and stated that the copies are prepared by an officer at the police station. His copy of the report, however, showed an “x” in a box to signify that Jackson had been drinking at the time of the accident. The verifax copy shows no such “x.” Officer Spanczak said he remembered putting in the “x” to show that Jackson had been drinking the day the report was made out. He did not know how it came about that the verifax copy did not show the “x.” He later said that he was mistaken when he said the Plymouth automobile was facing in a northeast direction, that it was facing southeast. This witness again stated that he had independent recollection of this accident, and that Erickson and Jackson had the odor of alcohol on their breaths.

Officer Nooner then testified, but added nothing new to what was said by Officer Spanczak.

Mary Louise Golich took the stand on behalf of the plaintiffs. She said she was with Erickson and Jackson the night and morning before the accident. She said she could not swear that Jackson had been drinking at Oddo’s Lounge that night. She stated that she went home that night and was picked up the next afternoon at her home by Jackson. She said the only thing anyone had to drink that afternoon was coffee. She stated that neither Erickson nor Jackson was intoxicated the night of April 16, 1960. She also said that in her opinion neither of them was intoxicated the following afternoon when she saw them again.

Winifred Zenow took the stand and testified that she was a court reporter and that she took the testimony of Earl Jackson on November 29, 1960. Jackson was not available for questioning at the time of the trial. The last anyone had heard from him he was in South America. During this deposition, Jackson said that the three of them — Erickson, Miss Golich and himself — had spent the night at Erickson’s house. He said they got up at about 3:30 or 4:00 o’clock the afternoon of April 17 and ate some breakfast. He said that each of them had a can of beer or two before leaving the house. He then said that they had been to various places during the day and that he had taken an alcoholic drink in each of them. He said he was not speeding before the accident. When he approached the puddle he slowed down. He stated he did not see the Pellico car approach. He said that as he hit the puddle his automobile stalled, and he was trying to start it when the accident occurred.

Dr. Eugene M. Narsete was the doctor who treated Earl Jackson when he was brought to the hospital following the accident. He said that there would be a medical reason to note on the record whether or not Jackson was intoxicated. “This would be, to be certain, we would be apprised of this fact insofar as medication is concerned. This is what we call charting during the initial period of hospitalization. By charting, we mean watching the patient. If he had been under the influence of alcohol, this . . . would alert us to this fact. From a medical point of view, that would be the only reason why it would be so indicated. On recross-examination, this witness said, “According to the records, the man in question was not intoxicated.”

At this point in the proceedings a motion to dismiss the defendant, Oak Park National Bank on the grounds that it was trustee under a passive trust, was allowed. A motion for a directed verdict at the close of the plaintiffs’ evidence on behalf of Shirley Oddo, Carmen Trimarco and Frances Trimarco was also allowed. The case of the counter-plaintiff went mostly to the extent of his injuries, all the evidence concerning the cause of the accident having been set out above. The court withdrew the question of the contributory negligence of both passengers from the jury, and, the jury verdicts found in favor of Frank Pellico on the counterclaim of Earl Jackson, in favor of Earl Jackson on the complaint of Frank Pellico, in favor of Sam Kleveno and George Boese doing business as the Ragdoll Tavern and against both plaintiffs, in favor of James Erickson and against Frank Pellico in the sum of $15,000 and in favor of Stephanie Pellico and against Earl Jackson in the sum of $10,000.

The appellants assign as error the giving of an instruction by the court that Erickson was not guilty of contributory negligence as a matter of law. It is also claimed that any finding that Frank J. Pellico was negligent was against the manifest weight of the evidence. The claim is also made that the elements of a dramshop action were established against Oddo’s Lounge and that it was error for the court to direct a verdict for Shirley Oddo, Carmen Trimarco and Frances Trimarco. The appellants claim that the jury verdict in favor of the owners of the Ragdoll Tavern was against the manifest weight of the evidence.

Other errors assigned include the court’s rulings on the admissibility of certain evidence, alleged improper cross-examination of Officer Spanczak, and the court’s refusal to call Mary Golich as a hostile witness.

The first points we shall deal with are the directed verdict regarding Oddo’s Lounge and the jury finding in favor of the Ragdoll Tavern. We believe that there is a complete failure of proof to connect the accident with any liquor which may have been served Jackson at either of these establishments. The Act on which this action is based is section 135 of the Liquor Control Act, Ill Rev Stats, 1959, c 43, sec 135. That section provides in part:

“Every person, who shall be injured, in person or property by any intoxicated person, shall have the right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; . . .”

The language of the statute is clear that to be held liable under this section, the defendant must have sold liquor which contributed to the intoxication of the person who caused the injury complained of. In the case at bar, Jackson had finished drinking that morning, had gone to Erickson’s house and slept for approximately six hours, and there was evidence he had taken a meal before driving the car again. There is no evidence that he was still intoxicated from the night before, and we see no way in which such an assumption properly can be made. We hold that the court below was correct in directing a verdict in favor of Oddo’s Lounge, and we believe he would have been acting properly to direct a verdict in favor of the Ragdoll Tavern as well.

The next point to be considered is whether or not the court acted properly in taking the question of Erickson’s contributory negligence from the jury. In his deposition, Earl Jackson said he had been drinking beer on the afternoon of the accident. Officer Spanczak testified he remembered smelling alcohol both on Erickson’s and Jackson’s breath when he was investigating the accident. Jackson’s deposition indicated that he had been drinking that afternoon. While it is true that Miss Golich and Erickson both denied that anyone had had anything to drink, and while it is true that there are verifax copies of the police report that indicate that Jackson had not been drinking, we cannot decide which version of the events is accurate. The court, in effect, directed a verdict on this issue; we believe this constituted error. There was some evidence that Jackson had been drinking the afternoon of the accident and that Erickson knew or should have known this. There is also a question of whether Erickson should have remained in the stalled auto when it might be hit by oncoming traffic. There was enough evidence for the question of Erickson’s contributory negligence to go to the jury. “As long as a question remains whether either party had observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of the evidence, the question must be submitted as one of fact.” Willoughby v. Moyer, 50 Ill App2d 462, 466, 200 NE2d 522, 524, (1964).

The next claim is that the finding that Frank J. Pellico was negligent was against the manifest weight of the evidence. While the jury did not return special verdicts, it is clear that they found Mr. Pellico guilty of negligence, for they permitted recovery against him by James Erickson. Mr. Pellico testified, “At this time, I do not recall whether I saw his car at any time within 50 feet of my car. ... I did not apply the brakes to my automobile at any time prior to this occurrence. . . .” We think that from this testimony alone the jury could have found that he had been driving negligently when the accident occurred. It is clear from all the evidence that the length of road on which the accident took place was potentially hazardous. The fact that Pellico did not see the car approach him could be interpreted as showing a lack of care on his part. According to the testimony of Erickson, Jackson’s car had stalled and was perfectly still when the Pellico car ran into it. If the jury believed this account, certainly there would be a strong indication of negligence on the part of Pellico. It seems clear, therefore, that there was some evidence of negligence on the part of Pellico. The jury could properly have reached the conclusion it did. Willoughby v. Moyer, supra.

Next, it is argued that the court below erred in refusing to admit a certified copy of a divorce decree and a report of the proceedings in Jackson’s divorce case. This decree entered on the complaint of his wife, severed the bonds of matrimony on the grounds of the husband’s habitual drunkenness. The general rule in this state is that general habits are admissible only where there are no eyewitnesses to the occurrence. The only cases from Illinois which we have found dealing with this matter are cases where the courts have permitted testimony as to the general habits of due care on the part of a deceased or one incompetent to testify. The appellants have, however, cited two cases from other jurisdictions which they say support this proposition. One of the cases, Hardeman v. Georgia Power Co., 42 Ga App 435, 156 SE 642 (1931), appears in abstract only, and none of the court’s reasoning is set out. The other case is McCarty v. Gappelberg (Tex), 273 SW2d 943 (1954).

We feel the courts of this state have adhered to the general rule that where there are witnesses competent to testify, reputation evidence such as this cannot be permitted to come in. In weighing the probative value of such evidence against the possible prejudice it might cause, our courts have held that the interests of justice require that such evidence as is sought to be introduced here must be excluded. The court below was correct in refusing to admit such evidence.

The next claim of error is that the court below limited the deposition of Jackson to the action between Jackson and the Pellicos. The claim is made that the statement by Jackson that he had two beers the afternoon of the accident should be admissible against both Oddo’s and the Ragdoll Tavern. As we have said before, there is no proof of any connection between whatever liquor may have been consumed in these two establishments and the accident which occurred approximately 10 hours later. This statement can only affect the issues of the negligence of Jackson and the contributory negligence of Erickson.

The next argument raised by the appellees is that Officer Spanczak should not have been cross-examined concerning those copies of the police reports which did not show the mark indicating that Jackson had been drinking. We believe such cross-examination was perfectly proper. It was established by competent testimony that all the copies were made by the police from the original report. It was also shown that the copying machine reproduced every mark on the paper except the “x” in question. This being so, a perfectly valid question arises concerning whether the mark in question was placed on the form when it was first filled out. Officer Spanczak said he had an independent recollection of placing the mark on the police form. What should be the final status of the police report is a question for determination by the jury. Officer Spanczak need not be personally connected with each copy of the report. It is enough that he said that he marked it a certain way when it was made out, and that copies made after that time do not have such a mark. We hold that the cross-examination was proper.

The final question for determination is whether the court should have called Mary Lou Golich as a hostile, or court’s witness. The appellants’ claim in this respect is that Miss Golich testified inconsistently with an earlier deposition she gave in order to protect her own lawsuit against Pellico. The appellants argue that they had to bring Miss Golich in as a witness so that the jury would not draw unfavorable inferences concerning her absence, but urge that under the circumstances, they should not be required to vouch for her credibility.

The record shows that there were discussions had among the attorneys and the court concerning this problem. The court stated that he would permit the Pellicos’ attorney to ask leading questions of Miss Golich in those cases where she testified in a manner clearly contrary to her previous deposition. Except for the question of whether she spent the night at Erickson’s house, however, it is not clear that there was any major inconsistency in the testimony of Miss Golich. We do not feel that the court below abused his discretion in refusing to call Miss Golich as a court’s witness.

Considering the fact that the actions here involved both claims and counterclaims and multiple parties— some of whom will not be involved in any further action in this case — we feel the interests of justice will be served by reversing the judgments in favor of Mrs. Pellico and Erickson, and remanding the cause. The judgments in favor of George Boese, Sam Kleveno, d/b/a The Ragdoll Tavern, Shirley Oddo, d/b/a Oddo’s Restaurant and Lounge, Carmen Trimarco and Frances Trimarco, are affirmed. The actions of the Pellicos against Jackson and of Erickson against the Pellicos are remanded for further proceedings not inconsistent with this opinion.

Judgment affirmed in part, reversed in part and remanded with directions.

LYONS and BURKE, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Knight, Defendant-Appellant.
    Gen. No. 50,384.
    First District, Third Division.
    May 5, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant;
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE SULLIVAN.

Not to be published in full.


author: MR. JUSTICE DEMPSEY SCHWARTZ, J.,

text:
    Flavia Mesich, Formerly Flavia Dire, Plaintiff-Appellant, v. Leland M. Austin, Defendant-Appellee.
    Gen. No. 49,631.
    First District, Third Division.
    May 5, 1966.

      John W. Daly, of Chicago, for appellant.
    Donald J. O’Brien, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is a personal injury case arising from the collision of two automobiles at an intersection. At the close of all the evidence the court held that the plaintiff was guilty of contributory negligence as a matter of law and directed a verdict for the defendant. The plaintiff appeals from the judgment entered on the verdict of not guilty.

The autos collided about 7 a. m. on a misty morning at the intersection of 31st Street, an east and west street, and First Avenue, a north and south street, in Riverside, Illinois. There were stop and go lights at the four corners. The plaintiff was on her way to work accompanied by a fellow employee. She was driving her car east on 31st Street and the defendant, who was also on his way to work, was driving south on First Avenue. The plaintiff testified that she was driving 25 miles an hour in the inner lane, that the traffic light was green for eastbound traffic and she looked both ways before she proceeded into First Avenue. Her car was struck on the left side near the driver’s seat by the defendant’s southbound auto. She lost consciousness and was taken to a hospital. She regained consciousness several hours later and remained in the hospital thirty days.

The defendant testified that the light was green for southbound traffic and that he was approximately one-half way across 31st Street when the plaintiff’s car suddenly pulled around others that were stopped and entered the street from the lane closest to the curb. He said he turned his auto practically around in an attempt to avoid hitting the plaintiff’s car. He further testified that he remained at the scene for half an hour and the light for southbound traffic remained green all this time. He said he talked with the plaintiff’s coworker and asked her why they had run the red light and that she replied she didn’t know but that they were late for work. The defendant’s 13-year-old son was riding in the back seat. He was the only occurrence witness to testify. He was not asked about the light but in other respects he corroborated his father’s testimony about the plaintiff’s car coming around other cars and entering the intersection from the outer lane.

Two police officers of the Village of Riverside arrived at the scene at 7:15 a. m. and remained there three or four minutes before taking the plaintiff to the hospital. They said that the lights at that time were red for eastbound and green for southbound traffic. One officer testified that they had reported that the lights were stuck on red for eastbound and green for southbound traffic at 3:15 a. m. The other said that a report about the lights not functioning properly had been received at the police station at 11 p. m. the night before and that another report came in around 4 a. m. in the morning. He said that he had informed the State police and the Meade Electric Company (a company that had a contract with the State to maintain the traffic lights) about the lights malfunctioning. The general foreman of the Meade Electric Company, however, who was also a defense witness, said he knew of no call to repair the faulty lights, that there was no such report, and if there had been a report his company would have had a record of it.

The plaintiff sued both Meade Electric and Austin. Her complaint was in two counts. The count against Austin charged him with failing to keep a sufficient lookout, failing to yield the right-of-way and driving at an unreasonable speed. The count against Meade charged the company with negligently maintaining the lights. Meade was dismissed from the case before evidence was heard and we do not know the plaintiff’s theory against that defendant. It could have been that the lights were out of order by being fixed at green for both east and southbound traffic at the time of the accident, thus inducing both her and Austin to proceed. The plaintiff’s insistence that she had the green light indicates that her counts were not inconsistent, but even if they were she had a clear right to plead them in the alternative (Ill Rev Stats, e 110, §43(2) (1963)) and if they were inconsistent and had gone to trial the sufficiency of the proof to support each count would have had to be judged separately against a motion for a directed verdict. McCormick v. Kopmann, 23 Ill App2d 189, 161 NE2d 720 (1959). The same standard in testing the sufficiency of the proof would have had to be applied whether the counts were consistent or inconsistent. We speak of this because the count against the electric company might have been a factor in the trial court’s decision to direct a verdict against the plaintiff despite her unequivocal testimony that she had the green light.

In determining whether the plaintiff was contributorily negligent as a matter of law, the testimony favorable to the plaintiff (and in this case that means her own testimony) must be taken as true. It is obvious that the trial court decided it was untrue. In making this determination the court invaded the province of the jury; the truth or falsity of her testimony was for the jury to determine, not the court. Standing alone her testimony was sufficient to sustain a judgment in her favor. The conflicting evidence made the question of contributory negligence one of fact, not of law. If the court was of the opinion that the weight of the evidence preponderated in favor of the defendant (and we do not dispute that it did) it was not for the court to so rule. The court cannot weigh conflicting evidence in a jury trial. The weight to be given evidence, as well as the credibility to be given witnesses, is for the jury to determine.

In intervening as it did in an adversary proceeding before a jury, the court transgressed three firmly established principles of Illinois law:

(1) the testimony favorable to the plaintiff must be regarded as true in determining whether there is any evidence which tends to prove the material elements of the plaintiff’s case;
(2) in a jury trial the credibility of the witnesses and the weight to be given their testimony is for the jury to determine;
(3) there should not be a directed verdict if there is any evidence, or reasonable inferences from the evidence, upon which a jury could base a verdict for the party against whom the motion is directed.

These principles have been restated in a great number of cases. Every judge who has sat in a court of review in this State for any length of time has had occasion to repeat one or all of them in his opinions.

In most cases concerning directed verdicts for defendants the reviewing courts have the problem of deciding whether there is evidence in the record, or reasonable inferences to be drawn therefrom, which taken with intendments most favorable to the plaintiff supports his or her claim; for a party cannot be deprived of his right to a jury trial if he has made out a prima facie case. In the present case this problem does not confront us. The plaintiff’s claim is supported by direct evidence: her positive testimony.

That the plaintiff might have been mistaken does not alter the standard by which her testimony is to be tested. And one cannot read her testimony in the record without being impressed with the sincerity of her belief that the light was green when she approached First Avenue. She saw the light turn green when she was a half-block away and she saw other eastbound cars in front of her cross First Avenue. Her speed was steady and she proceeded in a straight line until she was struck broadside without seeing or hearing any pri- or warning. She had the right to assume that it was safe to proceed. In Yelinich v. Capalongo, 38 Ill App2d 199, 186 NE2d 777 (1962), the court stated:

“Control lights are installed to give a preferential right of way to motorists having the green light. Uniform Traffic Act, art m, sec 129, Ill Rev Stats, c 95%, § 129. One purpose of this statute is to prevent injuries. Persons having the green light may assume the intersecting traffic will stop until the light for them turns green.”

The only way we could affirm the judgment of the trial court would be to ignore past decisions and attempt to formulate new standards to be applied to motions for directed verdicts, judging the credibility of witnesses and the preliminary proof required in determining whether a plaintiff has proved the material elements of his case. It has been suggested that the Supreme Court opened the door for different standards in the case of Carter v. Winter, 32 Ill2d 275, 204 NE2d 755 (1965). We do not believe this was done. That case concerned a rear-end collision on a heavily traveled four-lane highway between the automobile of the plaintiff and that of the defendant. The question before the court was whether a verdict should have been directed for the defendant who ran into the plaintiff’s auto. The court held that it should have been and that the Appellate Court and the trial court were in error in deciding otherwise, because the plaintiff’s own testimony proved him guilty of contributory negligence as a matter of law. The plaintiff testified that he pulled from a side road onto the highway and into the path of the defendant’s auto 30 or 40 yards away which was traveling 75 to 80 miles per hour. Before determining that this was a judicial admission which conclusively barred his claim the court evaluated his entire testimony and the testimony of the other witnesses to the occurrence. The court found that the testimony of the other witnesses was of little assistance to the plaintiff and stated:

“In our judgment, plaintiff’s own testimony that he knowingly turned his comparatively slowly moving auto into the lane of traffic occupied by an approaching car then 120 feet or less away and traveling 75 to 80 miles per hour, when viewed in the light of the rest of his testimony and that of the other witnesses, conclusively establishes his guilt of contributory negligence as a matter of law. One cannot knowingly expose himself to danger and subsequently recover damages for an injury which, by the employment of reasonable precaution and circumspection, he might have entirely avoided.”

It has been argued that the court in holding that the defendant was entitled to a directed verdict did so despite evidence favorable to the plaintiff and that the court passed upon the credibility of the witnesses. The court did find the testimony of two of the plaintiff’s witnesses intrinsically improbable: that the story of one required from the defendant’s car a speed of at least 150 miles per hour and that the story of the other also made it travel at an impossible rate of speed. The court, however, appraised the testimony of these and the other witnesses not in relation to the standard for a directed verdict, but to see (under the rule of McCormack v. Haan, 20 Ill2d 75, 169 NE2d 239) if their testimony exculpated the plaintiff from his judicial admission of negligence. Indeed the court, instead of deviating from the standard, reaffirmed it by stating:

“In determining whether defendants’ motion for a directed verdict should have been allowed, all of the evidence, when viewed most favorably to plaintiff, must totally fail to establish one or more essential elements of the case.”

The same test was applied four months later in the case of Jines v. Greyhound Corp., 33 Ill2d 83, 210 NE2d 562 (1965). The court was again considering a case in which the defendant urged that the plaintiff was guilty of contributory negligence as a matter of law. The automobile in which the plaintiff was riding stalled on a well-traveled thoroughfare. He and the other occupants got out of the auto, but the plaintiff reentered it. The testimony was in conflict whether the auto’s lights were on, whether a flare had been lighted or if anyone was flagging traffic at the time he got back in the auto and while he remained there. The court found that although the plaintiff left a place of comparative safety for one of danger he did so for reasonable purposes, and that it could not be held that his reentry was an act of contributory negligence as a matter of law. In so finding, the court reenunciated the rule of law that:

“In determining whether plaintiff was contributorily negligent as a matter of law, the testimony favorable to the plaintiff must be taken as true.”

If the present case had gone to the jury and if the jury had returned a verdict for the plaintiff the trial court certainly would have set it aside as being against the preponderance of the evidence. In view of this it may have seemed useless to the court to take time for arguments, instructions and jury deliberation, but we believe the time necessary to complete the case would have been a small price to pay for following the law. The court had appropriate power to deal with any eventuality, but it had no authority to prematurely intervene at the time and in the manner it did.

There is a temptation in a case such as this, where the evidence weighs heavily in one party’s favor, to cut through the restraints imposed by those fundamental principles which protect the right of the opposite party to have a jury pass on his case. This is especially so if one is impatient with the delays the jury process entails. Although it may appear desirable in a particular case to relax the time-honored and hundreds-of-times confirmed principles it cannot be done without undermining them. It is an old, legal truism that “hard cases make bad law.” For a reviewing court to relax the long-settled standards of proof in a hard case would encourage further relaxation; it would be an invitation to trial judges to weigh evidence and determine credibility. Instead of the tried, sound, and clear-cut standards that now prevail there would be substituted indefinite and variable ones. This inevitably would lead to more summarily directed verdicts and to more appeals.

We cannot place our approval on the action of the trial court. The judgment will be reversed and the cause remanded.

Reversed and "remanded.

SULLIVAN, P. J., concurs.

SCHWARTZ, J.,

dissenting:

The statement of facts given in the majority opinion is in general accurate. It may be emphasized that the fellow employee who was a passenger of plaintiff did not appear at the trial, and that plaintiff was the sole witness in her behalf. Also, defendant’s testimony that during the half-hour period he remained at the scene, the lights were stuck at green for north-south traffic and at red for east-west traffic was supported by the testimony of two disinterested police officers that this was so not merely for a few minutes, but for hours before and after the occurrence. Plaintiff may have been the victim of an error of perception in her momentary glance at the signal lights, but this is hardly possible in the case of defendant and the officers who had repeated chances for observation and who would clearly be guilty of perjury if their testimony was false. There is no room left for doubt as to which car in fact had the green light. Without observing the witnesses, the majority agrees with me that the essentials of the case are so strong that, as they put it, “If the present case had gone to the jury and if the jury had returned a verdict for the plaintiff, the trial court certainly would have set it aside as being against the preponderance of the evidence.” (Emphasis added.) They might well have added that if the trial court had not so held, the Appellate Court on appeal would have set it aside as against the manifest weight of the evidence. It would appear to be an incredibly foolish requirement that such a case need go to the jury, whose verdict if for plaintiff would have to be set aside as against the preponderance or the manifest weight of the evidence. Yet the position taken in the majority opinion is not without support in law. It has long been the rule that a verdict shall not be directed when there is any evidence which taken alone with all reasonable intendments would support a verdict for the party opposing the motion. In my opinion the rule has no sound basis in history or in logic, and the Supreme Court of this state has departed from it, without specifically formulating a new rule, as will be presently shown.

The majority opinion seems to be based on three propositions: 1, the modification of this rule as implied in the trial court’s ruling would constitute an invasion of the right to a jury trial; 2, such a changed rule would be hard to administer and would cause a flood of appeals; and, 3, the Supreme Court’s recent decisions do not, as I think they do, indicate that the rule has already been abandoned.

The supposed invasion of the right to trial by jury must be analyzed in the light of the history of that institution, which reveals that at all times since its inception, the jury has been subject to controls at the hands of the court. The jury began as a body of witnesses whose personal knowledge might aid the judge whose responsibility it remained to decide the case. The jury gradually became the trier of fact, but remained subject to a variety of judicial controls to keep its deliberations within bounds. The rules of evidence are at hand to keep irrelevant or prejudicial data from the jury’s consideration, and there are two devices to prevent entry of judgment upon verdicts that might be based on insufficient evidence. These are the direction of verdicts (including entry of judgment notwithstanding the verdict) and the setting aside of a verdict and the granting of a new trial. Although the purposes of each are similar, the standards are not identical. If the trial court concludes that a given verdict is against the preponderance of the evidence, it may on motion set aside the verdict and grant a new trial. If it concludes that damages awarded are excessive, denial of a motion for a new trial may be conditioned on plaintiff’s consent to a remittitur. The denial of a motion for a new trial is reviewable on appeal from the judgment entered, and the reviewing court may reverse and remand for new trial if it concludes that the verdict is against the manifest weight of the evidence. This difference presumably reflects the advantage which the trial judge has in evaluating the evidence firsthand, rather than from the cold record. The granting of a new trial is now reviewable by leave to appeal, and the question on review is whether the trial court erred in its application of the preponderance of the evidence test.

The standard with respect to directing verdicts (as well as for entering judgments notwithstanding the verdict) has been that a verdict should not be directed if there is any evidence which taken alone with all its reasonable intendments would support a verdict for the party opposing the motion. The same standard is applied on review. In many decisions this has been construed to mean that only favorable evidence should be considered and all other evidence should be ignored. Otherwise, as the argument runs, the judge would be balancing the evidence and to some degree finding facts. Such weighing of the evidence is said to be permissible when a new trial is granted because the losing party is given a “fresh panel.” Assuming that there would be no changes in the evidence at the new trial, and the new panel found as did the first one, the court would again have to set aside the verdict, and so on, ad infinitum, except as courts or statutes have put a limit on the number of trials.

Appellate courts in Illinois from early in the state’s history had power to reverse judgments based on jury verdicts without remanding for a new trial, even where the state of the evidence would not have justified the trial court in directing a verdict under the prevailing rules. In Borg v. Chicago, R. I. & P. R. Co., 162 Ill 348, 44 NE 722 (1896) the Supreme Court held that reversing without remanding in such circumstances did not invade the constitutional province of the jury, and said:

“We have seen that the right of trial by jury as it was enjoyed at the time of the adoption of the present constitution [1870] was not the right of an indefinite number of jury trials in the same cause, where an Appellate Court, on a review of the case, should find that a recovery would be merely a perversion of justice. Such right of trial by jury was never deemed to be invaded by the reversal of a cause without remanding it for another trial. Parties still have the right to submit controversies of fact to the consideration of a jury, and the successful party gains all the advantages and benefits following a verdict . . . arising from superior opportunities to judge of the credibility of witnesses. But when, with all the advantages accorded to them, it appears to the Appellate Court that there can not be a recovery which should be allowed to stand, no constitutional right is invaded by a refusal to remand the case for successive trials which must necessarily be followed by successive refusals.” (Pages 855, 356.)

This case was the controlling authority on the subject for almost a generation, until it was overruled by the court in Mirich v. T. J. Forschner Contracting Co., 312 Ill 343, 143 NE 846 (1924). In that case the court concluded that the history of appellate practice was misread in Borg and held that the Appellate Court may not weigh the evidence in reversing without remanding. The court’s reasoning was as follows:

“It has always been recognized that for a trial court to weigh and determine conflicting evidence and direct the jury what verdict to render would be a direct violation of the constitutional right of trial by jury. The parties are entitled, under the constitution, to have the facts passed on by a jury. If the legislature cannot authorize the trial court to take a case from the jury where the evidence as to the truth of the facts alleged is conflicting, and render judgment, how can it confer that power on the Appellate Court?” (Page 356.)

No authority whatsoever was advanced for the central assumption that the then prevailing rule for directing verdicts rested on the constitutional basis.

Meanwhile, a short-lived line of authority parallel to the Borg case flowered and withered in a series of cases between 1898 and 1915, where it was held that after several trials followed by appeals and reversals on the ground that the verdicts were against the weight of the evidence, the facts should be found by the Appellate Court on appeal and judgments entered. Bandy v. Litchfield & Madison R. Co., 196 Ill App 560; Huchette v. Williamson County Coal Co., 188 Ill App 321; Dick v. Swenson, 137 Ill App 68; Freeland v. Hughes, 120 Ill App 109; Eveland v. Van Dyke, 78 Ill App 410. From 1845 to 1933, the Civil Practice Act provided that no more than two new trials could be granted to the same party in the same cause. Illinois Rev Stats, c 110, § 77 (1931). But this provision was rendered ineffective by a case holding that it applied only to trial courts and not to appellate courts, Illinois Cent. R. Co. v. Patterson, 93 Ill 290, and it was removed from the act in the course of the 1933 revisions. The directives of the constitution in this area, as interpreted by our courts, are not entirely clear, but I do not perceive any substantial barrier to changing the present rule for directing verdicts.

The majority fears that a departure from the past rule would be unworkable. The fact is that for many years there have been jurisdictions in which the trial judge is granted a wider discretion. In the federal courts, for example, “a verdict will normally be directed where both the facts and the inferences to be drawn therefrom, as supported by the overwhelming weight of the evidence, point so strongly in favor of one party or the other that the court feels reasonable men could not possibly come to a contrary conclusion.” 5 Moore ¶ 50.-02, at 2314 (2d ed 1964). See Comment, 42 Texas L Rev 1054 (1964); Comment, 107 Pa L Rev 217 (1958) (and cases and statutes there cited). The standard employed in some federal circuits and in several states is that a verdict may be directed whenever on motion it would be the duty of the court to grant a new trial. Jones v. J. P. Stevens and Co., Inc., 328 F2d 428 (CA 5th, 1964); In re Sinift’s Estate, 233 Iowa 800, 10 NW 2d 550, 554 (1943); Potter v. Robinson, 233 Iowa 479, 9 MW2d 457, (1943).

In other jurisdictions, direction of the verdict is permitted when the evidence is in a state of extreme imbalance; that is to say, where a verdict in favor of one party would be supported by the overwhelming weight of the evidence. This is the standard employed in Minnesota, as ably expressed in Hanson v. Homeland Ins. Co. of America, 232 Minn 403, 45 NW2d 637 (1951). There the defendant insurance company denied liability on a property loss policy, challenging the plaintiffs’ ownership of a used commercial trailer that had been stolen. The plaintiffs established by overwhelmingly convincing evidence that the trailer had been effectively transferred to them as a trade-in on a new trailer. The defendant offered only a proof of loss letter, written by its agent, but signed by plaintiffs’ agent, which asserted that the trailer had been left “on consignment for sale.” This letter standing alone as evidence might have justified a verdict for the defendant. In affirming judgment on a directed verdict for the plaintiffs, the court stated the Minnesota rule, which is similar to ours, but made the following qualification:

“[I]f the evidence, as a whole so overwhelmingly preponderates in favor of a party as to leave no doubt as to the factual truth, he is entitled to a directed verdict . . . even though there is some evidence which, if standing alone, would justify a verdict to the contrary. Not every conflict in evidence gives birth to a jury question.” (Page 638.)

By the same token, the court further said that credibility need not be accepted “where the testimony of a witness is absolutely impossible either physically or morally; or where the evidence presented by a party is so unreasonable and inconsistent and so opposed by undisputed and independent evidence as to be wholly incredible and unworthy of belief.” Accord: Continental Bank & Trust Co. v. Stewart, 4 Utah2d 228, 291 P2d 890, 892 (1955).

It appears to me that the present rule in our state is characterized by a singular lack of logic. The test— whether there is any evidence standing alone that would support a verdict — probably stems from now obsolete rules of pleading which required the movant to accept the opponent’s case as true. Certainly no worthy aims are served by limiting judicial consideration to favorable evidence when a directed verdict is in question. The limitation requires a feat of mental insulation almost unknown in ordinary affairs and its folly has been eloquently stated: “[W]eak evidence, when viewed alone, may appear substantial, but when viewed in the light of other evidence, may practically disappear. A candle lighted in a dark hall may be clearly visible and give a welcome glow until powerful arc lights flood the hall with light.” Blume, Origin and Development of the Directed Verdict, 48 Mich L Rev 555, 577 (1950).

It is argued that such a change might cause a flood of appeals from decisions directing verdicts and that it is better to allow the case to go to the jury, which may be expected to do the intelligent thing. If this argument has any merit, it would counsel entering judgment notwithstanding the verdict, instead of directing the verdict. On the other hand, there is nothing to prevent appeals from unfavorable jury verdicts, even where the evidence leaves little room for doubt that the verdict was right. Appeals may also be taken from denials of motions for a new trial. The fear that there would be more appeals from cases disposed of by directed verdicts than from those disposed of by other measures is groundless. Moreover, the state of our appellate docket does not present vital social problems, but the state of the docket of the Circuit Court of Cook County does. How many of these backlogged cases were brought merely for purposes of settlement may only be a matter for conjecture, but it is more than conjecture to suppose that many cases now clogging the docket would never have been brought if the plaintiffs knew that verdicts would be directed in weak or frivolous cases. The instant suit grows out of an accident which occurred twelve years ago. The writer of this opinion has recently filed an opinion in a case based on an accident which occurred eleven years ago (Sobina v. Busby, 62 Ill App2d 1, 210 NE2d 769) and still another opinion based on an accident which occurred fourteen years ago (Noe v. Chicago & Great Western Ry. Co., 71 Ill App2d 347, 219 NE2d 111, filed December 9, 1965). I have not pursued this research further out of a sense of embarrassment for my profession.

The third premise of the majority opinion is that affirmance in the instant case would depart from precedent. The Supreme Court of this state, while not formally abandoning the rule that only favorable evidence may be considered in determining whether a case should go to the jury, has, I think, departed from it in a number of cases, and has based its decision on the overwhelming weight of the evidence.

In Tucker v. New York, C. & St. L. R. Co., 12 Ill2d 532, 147 NE2d 376, the issue was whether a verdict should have been directed for the defendant. The case involved an accident at a railroad crossing. The plaintiff testified that he was driving a truck and as he approached the crossing, he looked both ways and, seeing no train, proceeded across and was struck by the defendant’s train. The plaintiff offered a plat and a profile map, of stipulated authenticity, to support the existence of a hollow which he claimed obstructed his view. Against this, the defendant under stipulation introduced eight photographs which clearly indicated that from the elevated seat of a truck the view was unobstructed. On the basis of the plaintiff’s evidence standing alone, there was an issue for the jury, but the court, after stating that it had “meticulously examined” the photographs, held that the plaintiff failed to show due care; that is, it gave weight to the overwhelming evidence offered by the moving party.

In Carter v. Winter, 32 Ill2d 275, 204 NE2d 755, the court affirmed an Appellate Court decision (50 Ill App2d 467, 200 NE2d 528) reversing, without remanding, a judgment for the plaintiff, and held that the defendant’s motion for a directed verdict should have been granted. An automobile driven by the plaintiff, carrying his wife and child, was struck from the rear by the defendant’s automobile as the plaintiff’s vehicle moved from a private driveway onto Route 66, a high-speed, four-lane highway. The chief issues of fact were the speed of the defendant’s car and the care with which the plaintiff entered the highway. The plaintiff, his wife and his brother testified in sum that the plaintiff stopped at the edge of the road, saw the defendant’s car about a quarter mile distant, proceeded directly across the northbound lanes, noticed the defendant’s southbound car closing in at about 80 miles an hour, and, entering the southbound lanes, accelerated to 35 miles an hour before the impact. The brother claimed to have witnessed the accident from his home adjoining the highway, but admitted that he did not then go to his brother’s assistance. In a pretrial deposition and in answer to interrogatories, the plaintiff described his brother as a post-occurrence witness. The defendant’s chauffeur and a passenger both testified that their constant speed was 50 to 55 miles an hour when the plaintiff pulled into their lanes about 35 yards ahead. A north-bound truck driver testified that the plaintiff’s car did not stop at the roadside, but slanted without stop across the northbound lanes, leaving visible wet tire marks. He estimated that as the plaintiff’s car crossed the center lines, it was fifty feet from the defendant’s car. The Appellate Court held that the issue was properly submitted to the jury since there was some evidence on the issues of negligence and contributory negligence, but that the verdict should be set aside since the manifest weight of the evidence proved Carter guilty of contributory negligence. However, it reversed without remanding on the basis of a separate ground not passed upon by the Supreme Court. That court affirmed the order of reversal, but held that a verdict should have been directed because “all of the evidence, when viewed most favorably to plaintiff” failed to establish freedom from contributory negligence (p 282) (emphasis added); that is, the court based its decision on all the evidence, taking into account the convincing testimony of the disinterested truck driver, which emphatically outweighed that of the plaintiff and his wife as to the manner of entering the highway, and the impeaching evidence that undermined the brother's claim that he witnessed the accident.

The majority contends that the court in Carter followed the orthodox rule and consulted other unfavorable evidence only in an attempt to exculpate the plaintiff from a judicial admission of his contributory negligence. The Supreme Court put it this way:

“ [P] laintiff's own testimony that he knowingly turned his comparatively slowly moving auto into the lane of traffic occupied by an approaching car then 120 feet or less away and traveling 75 or 80 miles per hour, when viewed in the light of the rest of his testimony and that of the other witnesses, conclusively establishes his guilt of contributory negligence as a matter of law.” (Pages 283, 284.)

If the court were following the old rule that only evidence favorable to the plaintiff could be considered, the result in the Carter case could not be rationally sustained. The plaintiff did not testify that when he originally entered Route 66, he knew the defendant’s speed. All he said was that he saw the defendant 400 yards away. At that distance a jury could have found that the defendant’s speed could not be gauged and that it was not negligent at that time to enter the highway. Then, according to the plaintiff’s testimony, as he had crossed the northbound lanes and was entering the southbound lanes, he realized that the defendant was approaching at 75 to 80 miles an hour. The question then arises as to what a careful driver should do in such a situation. He cannot very well stop athwart the center line (there was no median strip) or he may be struck by the northbound traffic. We know that at least one northbound truck was approaching. If these facts were accepted as true, the court must have understood that a jury might reasonably have concluded that the most reasonable course for the plaintiff was to proceed into the outside lane and thus give the defendant’s speeding car a chance to pass in the normal passing lane. The answer is that these facts were not accepted as true. When the court looked beyond the plaintiff’s testimony to the other testimony, it did not consider merely evidence favorable to plaintiff, but explicitly (pages 282, 283) considered all the evidence, favorable and unfavorable. The court then must have concluded that in the light of all the evidence, the favorable evidence failed to support the plaintiff’s case.

Further supporting this conclusion is the court’s use of McCormack v. Haan, 20 Ill2d 75, 169 NE2d 239, discussed in the majority opinion. That case held that a party’s judicial admission should not be deemed conclusive against him without an examination of the rest of his testimony and all the other evidence to see whether the effect of the admission may not be mitigated or explained away. In McCormack, the plaintiff was a passenger in a car driven by defendant’s decedent, which was struck as it entered a preferential highway. The plaintiff testified that the car stopped at the stop sign controlling the intersection, but the occupants of the oncoming car testified that her car did not stop. The language of the complaint charged wilful and wanton misconduct by the driver, based in part on the charge that he did not stop. This was read to the plaintiff and she was asked whether she made that charge. She answered no, and the court held that that answer was not a judicial admission because it had to be construed in the light of all of her testimony and the testimony of the other witnesses. The process of looking to other evidence is not properly used to establish an admission, but to see whether what appears to be an admission may not be explained away. In Carter v. Winter, as we have seen, the plaintiff’s own testimony hardly constitutes an admission of his negligence. The purpose of considering the testimony of all the other witnesses was not the rehabilitation of the plaintiff’s testimony, as was done in the McCormack case. It was the undermining of that testimony which was considered insubstantial because outweighed by the overwhelming weight of the evidence.

Jines v. Greyhound Corp., 33 Ill2d 83, 210 NE2d 562 (1965) also referred to in the majority opinion, in no way qualifies what the Supreme Court did in the Tucker and Carter cases. There, the question was whether a car stalled on the highway at night was adequately lighted, and whether the plaintiff was negligent in temporarily reentering the car shortly before it was struck by the defendant’s bus. There was nothing inherently incredible about testimony that the car was lighted and marked by flares, and this was in part supported by a disinterested witness. The case did not present the problem contained in the Tucker case, the Carter case, and the instant case, that of evidence, substantial when viewed alone, but incredible in the light of all the evidence.

There is no sound reason why a case should go to the jury where the success of one party would depend on a verdict contrary to the overwhelming weight of the evidence. In my opinion this is the rule to be drawn from the Tucker and Carter cases. In the instant case the plaintiff’s testimony, the sole basis of her case, is so contrary to the overwhelming weight of the evidence that it is unworthy of belief. The trial court did not err in disposing of a case so devoid of merit by means of a directed verdict, and I would affirm the judgment entered thereon.