Hughes v. Bandy

Citation404 Ill. 74,87 N.E.2d 855
Decision Date22 September 1949
Docket NumberNo. 31090.,31090.
PartiesHUGHES v. BANDY.
CourtSupreme Court of Illinois
OPINION TEXT STARTS HERE

Robert Hughes sued Perley M. Bandy, Jr., a minor, for personal injuries sustained in an antomobile collision, and defendant filed a counterclaim for personal injuries and property damage.

From a judgment of the Appellate Court, Third District, Dady, P. J., 336 Ill.App. 472, 84 N.E.2d 664, reversing a judgment of the Circuit Court of Montgomery County, Ward P. Holt, J., for plaintiff, and remanding the cause with directions to enter a judgment in his favor for a smaller amount, he appealed.

The Supreme Court, Wilson, J., affirmed the Appellate Court's judgment, holding that the Circuit Court erred in granting plaintiff's motion for judgment notwithstanding a jury's verdict in his favor for an unsatisfactory amount and entering judgment for a larger sum, in view of conflicting evidence on the question of negligence, and that plaintiff's failure to move for a new trial barred him from challenging the amount of the verdict.Vandever & Bullington, Hillsboro, for appellant.

Omer Poos, Hillsboro, for appellee.

WILSON, Justice.

The plaintiff, Robert Hughes, brought an action in the circuit court of Montgomery County against the defendant, Perley M. Bandy, Jr., a minor, to recover damages for personal injuries sustained in an automobile collision on September 1, 1947. Defendant answered and filed a counterclaim seeking damages from plaintiff for both personal injuries and property damage. Plintiff answered the counterclaim. Defendant's motions for a directed verdict at the colse of plaintiff's case and, again, at the close of all the evidence, were denined. Plaintiff's motion for a directed verdict as to the counterclaim was likewise denied. A jury found the issues in favor of plaintiff and against defendant and awarded plaintiff damages in the amount of $615. The jury found plaintiff not guilty as to defendant's counterclaim. Plaintiff thereupon made a motion for judgment in the amount of $1218.25, notwithstanding the verdict returned in his favor for $615. This motion was allowed, and judgment was rendered in favor of plaintiff and against defendant for $1218.25 and costs. Neither party made a motion for a new trial. Upon appeal, the Appellate Court for the Third District reversed the judgment of the circuit court and remanded the cause, with directions to enter a judgment in favor of plaintiff and against defendant for $615 and costs. Hughes v. Bandy, 336 Ill.App. 472, 84 N.E.2d 664. The Appellate Court granted a certificate of importance and allowed a further appeal to this court.

The sole question presented for decision in the Appellate Court, and upon this further appeal, is the correctness of the order of the circuit court granting plaintiff's motion for judgment notwithstanding the verdict. His motion alleged that the parties stipulated the difference of the fair cash market value of plaintiff's automobile before and after the collision was $1050; that the fair and reasonable charge for medical and hospital services rendered plaintiff for treatment of injuries received in the collision was $63.25, and that plaintiff testified he was deprived of his average daily income of fifteen dollars for seven days, a total of $105, as the result of being unable to use his own automobile, or to obtain another car, during the seven-day period following the collision. The aggregrate amount of the three itmes described is $1218.25, and it was for this amount that plaintiff sought judgment notwithstanding the verdict. Defendant interposed objections to the motion, averring that there was disputed evidence in the case as to the negligence, as to contributory negligence, and as to personal injuries and, further, that the court was without power to entertain the motion because (1) it has to be tested under the same rule as a motion for a directed verdict, which does not go to the measure of damages, since this can be tested only by motion for a new trial; (2) if there is any evidence tending to support the theory of evidence as to actual liability, the motionfor judgment notwithstanding the verdict must be denied, and (3) the court cannot weigh evidence on a motion of this nature.

Reviewing the evidence to the extent necessary to a disposition of the issue presented for decision, the Appellate Court found, and there is evidence in the record to support its findings of fact, that the collision took place on School Street in Hillsboro, a paved street running in an easterly and westerly direction, with a black line in the center of the street; that plaintiff's car was traveling east and defendant's car proceeding west, and that the ‘left front’ of defendant's car ‘hit’ the ‘left side’ of plaintiff's automobile.

Plaintiff's complaint and defendant's counterclaim each charged that the opposite party negligently drove his automobile on the left or wrong side of the center of the street and against the car of the other party. The respective answers of the parties denied any negligence.

Plaintiff testified that he was proceeding in an easterly direction at a speed of about thirty miles per hour and appoximately one and one-half feet south of the black line in the center of the street; that he first saw defendant's car when it was at a distance of about 150 feet and that it was then on the north half of the street; that he looked up again and saw defendant's car coming towards his car and, in so doing, came one and one-half to two feet across the black line, and that he, plaintiff, then applied his brakes, blew his horn and went further to the south side of the street but the left front of defendant's car then hit the left side of his car. Plaintiff's version of the occurrence was corroborated by other witnesses.

Defendant testified that he was driving in a westerly direction at a rate of between twenty and twenty-five miles per hour on the north half of the street; that he saw plaintiff's car when it was about forty feet distant; that plaintiff's car swerved at his car, that plaintiff ‘jerked his wheel to my side of the road’ over the center line, and that he then ‘cut on the other side of the road to avoid him hitting me on my side of the road.’ Defendant's testimony was likewise corroborated by the testimony of other witnesses.

Section 68 of the Civil Practice Act permits either party to move for a judgment notwithstanding the verdict. (Ill.Rev.Stat.1947, chap. 110, par. 192.) Rule 22 of this court (Ill.Rev.Stat.1947, chap. 110, par. 259.22) provides that the power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence, it would have been the duty of the court to direct a verdict without submitting the case to the jury. Rule 22 provides, further, that when a motion for a judgment notwithstanding the verdict shall be filed and submitted in any court of record in any civil cause tried before a jury, and the trial court shall enter an order granting the motion, the court shall, at the same time, pass upon and decide in the same order any motion for a new trial made by the party moving for judgment...

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32 cases
  • Corbett v. Devon Bank, 56690
    • United States
    • United States Appellate Court of Illinois
    • June 25, 1973
    ...... Note also Hughes v. Bandy, 336 Ill.App. 472, 477, 478, 84 N.E.2d 664; affirmed 404 Ill. 74, 87 N.E.2d 855. . Page 526 .         However, it appears that the ......
  • Merrill v. Hill, 2-01-1190.
    • United States
    • United States Appellate Court of Illinois
    • December 31, 2002
    ......[Citation.]. In Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855 (1949), the supreme court disapproved the procedure followed here of using a motion for judgment n.o.v. to ......
  • Junod v. Ill. Cent. R.R. Co., 1-13-2393
    • United States
    • United States Appellate Court of Illinois
    • December 31, 2014
    ...evidence "makes out a prima facie case sufficient in itself to go to the jury, defendant's motion should be denied ***." Hughes v. Bandy, 404 Ill. 74, 79 (1949). Given the many witnesses who testified for Junod as to the insufficiency of the tools, we find Junod made a prima facie case and ......
  • Fulford v. O'Connor, 32992
    • United States
    • Supreme Court of Illinois
    • September 23, 1954
    ...... of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense.' Hughes v. Bandy, 404 Ill. 74, 79, 87 N.E.2d 855, 858. Plaintiff's contention thus reduces to the proposition that the trial court may withdraw the case ......
  • Request a trial to view additional results

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