Hughes v. Bandy

• Decision Date: 28 February 1949
• Docket Number: Gen. No. 9629.
• Citation: 336 Ill.App. 472,84 N.E.2d 664
• Parties: HUGHES v. BANDY.
• Court: United States Appellate Court of Illinois

336 Ill.App. 472

84 N.E.2d 664

HUGHES

v.BANDY.

Gen. No. 9629.

Appellate Court of Illinois, Third District.

Feb. 28, 1949.

Appeal from Circuit Court, Montgomery County; Ward P. Holt, Judge.

Action by Robert Hughes against Perley M. Bandy, Jr., a minor, by Omer Poos, his duly appointed guardian ad litem, to recover for damages arising out of an automobile collision, wherein the defendant counterclaimed. From a judgment for plaintiff in the sum of $1,218.25, notwithstanding verdict for plaintiff for $615, defendant appeals.

Reversed and remanded with directions.

Omer Poos, of Hillsboro, for appellant.

Vandever & Bullington, of Hillsboro, for appellee.

DADY, Presiding Justice.

In this automobile collision case a jury returned a verdict for $615.00 in favor of the plaintiff-appellee Robert Hughes and against the defendant-appellant Perley M. Bandy, Jr., a minor. On the counter-claim of Bandy the jury found the counter-defendant Hughes not guilty. Thereupon the plaintiff made a motion for a judgment in favor of the plaintiff for the sum of $1,218.25 notwithstanding the verdict. The trial court allowed such motion and entered judgment in favor of the plaintiff for $1,218.25.

Inasmuch as the only question for us to pass upon is the propriety of the allowance of such motion and the entry of such judgment, we consider it sufficient to only set forth such of the evidence as we consider material on such question.

The collision took place on School Street in the City of Hillsboro, which street ran in an easterly and westerly direction and was paved, there being a black line in the center of the street. The Hughes car was traveling east and the Bandy car was traveling west. The ‘left front’ of defendant's car ‘hit’ the ‘left side’ of plaintiff's car.

So far as is material the complaint and counter-complaint each charged that the opposite party negligently drove his car on the left or wrong side of the center of the street and against the car of the other party. The answers of each party denied any negligence.

Hughes testified that he was going easterly about 30 miles an hour and about 1 1/2 feet south of the black line in the center of the street, and first saw the defendant's car when it was distant about 150 feet, that defendant's car was then on the north half of the street, that Hughes looked up again and the defendant's car was coming towards the Hughes car, and in so doing came 1 1/2 to 2 feet across the black line, that he, Hughes, then applied his brakes and blew his horn and went further to the south side of the street, but that the left front of the defendant's car then hit the left side of the plaintiff's car.

His testimony was corroborated by the testimony of other witnesses.

Bandy testified that he was going westerly about 20 or 25 miles per hour on the north half of the street, that he saw the Hughes car when it was about 40 feet distant, that the Hughes car swerved at the Bandy car, that Hughes ‘jerked his wheel to my side of the road and got over the center line and kept coming. I then cut on the other side of the road to avoid hitting him.'

His testimony was also corroborated by the testimony of other witnesses.

Neither the plaintiff nor the defendant made any motion for a new trial, and the only question before us is whether or not under the particular facts of the case the trial court erred in entering judgment for the plaintiff in the amount of $1,218.25, instead in the amount of $615 as found by the verdict.

The motion for such judgment was in writing and asked for such judgment in the sum of $1,218.25, for the reason that in the trial court it had been stipulated that the damage to plaintiff's automobile was $1,050 and that the reasonable charge for plaintiff's hospital services was $23.25, and conceded that the reasonable charge for plaintiff's medical services was $40, and that the undisputed evidence showed that the value of plaintiff's loss of time for seven days of unemployment as a result of the collision was $105 making $1,218.25 undisputed damages.

In McNeff v. White Eagle Brewing Co., 294 Ill.App. 37, 13 N.E.2d 493, cited by appellee, the action was based on an alleged breach of contract. The jury returned a verdict of $2,500 for the plaintiff. On plaintiff's motion for a judgment notwithstanding the verdict the court entered judgment for the plaintiff in the sum of $11,362. In affirming such judgment the Appellate Court reviewed the evidence and, 294 Ill.App. at page 43, 13 N.E.2d at page 495 said: ‘It follows from these considerations that there were no disputed questions of fact to be determined by the jury.'

In Paschall v. Reed, 320 Ill.App. 390, 51 N.E.2d 342, an ex contractu action cited by appellee, a jury returned a verdict of $1,000 for the plaintiff. The trial court on motion of the plaintiff entered judgment for the plaintiff in the amount of $4,750 notwithstanding the verdict. In affirming the judgment the Appellate Court, 320 Ill.App. at page 396, 51 N.E.2d at page 344, said: ‘In the instant case it is conceded by both parties that plaintiff is entitled to a judgment for $4,750, or is not entitled to a judgment for anything, * * * We have reviewed the evidence in this cause carefully and are convinced that, as a matter of law, no defense to claim of plaintiff is presented by defendant, nor is there any disputed question of fact from which a jury would be justified in rendering a verdict for the defendant, viewing all the evidence in the cause most favorably for the defendant (without attempting in any manner to weigh the evidence).'

We do not consider that either the McNeff case, supra, or the Paschall case, supra, is in point or helpful in arriving at a correct decision in the present case.

In Chapman v. Deep Rock Oil Corporation, 333 Ill.App. 529, 77 N.E.2d 883, 887, a tort action, a jury returned a verdict of $2,000 for one of the plaintiffs. On motion of such plaintiff the trial court then entered judgment for $3,100 for such plaintiff notwithstanding the verdict. Although the evidence as to the liability of the defendant was conflicting, the Appellate Court in that case held that it was ‘proper for the trial court to mould the verdict * * * to meet the evidence * * * and to enter judgment notwithstanding the verdict for the amount which the evidence showed the plaintiff was entitled to recover.’ Paschall v. Reed, supra, was the only case...