87 N.E.2d 855 (Ill. 1949), 31090, Hughes v. Bandy

Docket Nº:31090.
Citation:87 N.E.2d 855, 404 Ill. 74
Party Name:HUGHES v. BANDY.
Case Date:September 22, 1949
Court:Supreme Court of Illinois
 
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Page 855

87 N.E.2d 855 (Ill. 1949)

404 Ill. 74

HUGHES

v.

BANDY.

No. 31090.

Supreme Court of Illinois

September 22, 1949

Page 856

[404 Ill. 75] 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.

[404 Ill. 76] 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 motion

Page 857

for 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[404 Ill. 77] 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...

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