Erickson v. Walsh
| Decision Date | 30 April 1973 |
| Docket Number | No. 72--126,72--126 |
| Citation | 11 Ill.App.3d 99,296 N.E.2d 36 |
| Parties | Harry L. ERICKSON, Plaintiff-Appellant, v. Edward WALSH and F. W. Lewis, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Louis E. Olivero, Peru, for plaintiff-appellant.
Andrew J. O'Connor, Ernest H. Pool, Jr., Ottawa, for defendants-appellees.
Plaintiff Harry L. Erickson appeals to this court from judgments of the Circuit Court of LaSalle County entered (1) on a directed verdict in favor of defendant F. W. Lewis and (2) as a result of a jury verdict in favor of defendant Edward Walsh, in the Circuit Court of LaSalle County. Plaintiff Harry L. Erickson had filed a two-count complaint in the Circuit Court of LaSalle County in which he sought recovery for personal injuries sustained by him as a result of an automobile accident. Defendant Edward Walsh, the driver of the car in which plaintiff was riding, and F. W. Lewis, the operator of the other automobile involved in the incident, were joined as defendants. At the close of evidence for the plaintiff, the trial court directed a verdict as to Count II of the complaint in favor of defendant Lewis. Thereafter, when the jury returned the verdict of not guilty as to defendant Walsh on Count I of the complaint, the trial court entered judgment in favor of defendant Walsh as to such count. Defendant F. W. Lewis also prosecutes a cross-appeal in this court in which he contends that the trial court erred in denying his motion for recovery of expenses from plaintiff incurred by defendant Lewis as a result of the litigation.
The record discloses that early in the afternoon on Sunday, August 28, 1966, the day of the accident, defendant Walsh and a friend, Vaughn Williamson, the brother-in-law of plaintiff, left the Walsh home near Ottawa, Illinois, and traveled in the 1965 Pontiac Convertible owned by Walsh, to Leo White's tavern near Wedron, Illinois. At the tavern they met another friend, Fred Carlson, and also (according to the plaintiff) defendant Walsh testified that the four people then left the tavern and traveled to plaintiff's home so that plaintiff could advise his wife that he was going along for a ride. According to the plaintiff and Williamson, plaintiff did not appear at Leo White's tavern at all but rather the three others went in defendant Walsh's car to plaintiff's home to ask him to go for a ride. It was stated that defendant Walsh wanted to look at a truck which had been advertised in the paper. Irrespective of where the initial meeting with plaintiff took place, it does not appear that such meeting was by mutual prior arrangement.
It is clear, in any event, that the group left plaintiff's home shortly after their arrival there in defendant Walsh's automobile with defendant Walsh driving. They drove toward Marseilles, Illinois, to a residence, where defendant Walsh talked to his job superintendent about the location of the work which defendant Walsh was to do the next day. After a brief time was spent at the superintendent's residence, the parties then drove into Marseilles and stopped at a tavern. Shortly thereafter they drove to Seneca, Illinois, to look at the truck. Walsh discussed the merits of the truck with the others and decided against purchasing it. The group then left Seneca, traveling in a westerly direction along Route 6 toward Ottawa. The top of the convertible was down as the party was driving along Route 6. Defendant Walsh was driving, Williamson was in the right front seat, Carlson was in the right rear seat, and the plaintiff was in the left rear seat. It was during this portion of the journey that the accident occurred. The day was bright, warm, and clear, and the pavement was dry.
There was some confusion as to the exact location of the accident. Williamson and defendant Walsh placed the accident at some distance west of the Material Service Corporation underpass. Defendant Lewis and the other occupant of his car, who subsequently became his wife, stated that the accident occurred at a point east of the underpass. As a result of the accident plaintiff's right hand was severely mangled and a portion of the hand was later amputated.
Prior to the accident there were some cucumbers in defendant Walsh's automobile which had been there since the day before the accident. Some members of the group were engaging in a bit of horseplay or amusement with the cucumbers. At least one cucumber was thrown at a road sign by Fred Carlson and another was thrown out of the automobile by plaintiff. According to the testimony of plaintiff, at a point when defendant Walsh was pulling out to pass an automobile in front of him, plaintiff stood up and reached over the 'front seat' for a cucumber. He recalls that immediately thereafter, he lost his balance, threw up his arms and fell over to his left. He remembers nothing further about the occurrence. Williamson stated that immediately prior to the occurrence, defendant Walsh had pulled out to pass the automobile ahead of them while they were in a 'no passing zone'. There was an oncoming car (that of defendant Lewis) and defendant Walsh, accordingly, started to move back into his own lane. Williamson looked into the back seat and saw that plaintiff had severely injured his right hand. Defendant Walsh states that at no time after he had traversed the underpass did he cross the center line in an attempt to pass another vehicle. He did not see plaintiff sustain his injury, but was told about it by Carlson. The Walsh car was traveling at about 50 to 60 miles per hour immediately prior to the accident.
Defendant Lewis testified that he was driving his car easterly along Route 6 and that he saw the Walsh car approaching him. He saw someone in the back seat stand up and 'dive' toward his left and that a few seconds later as he passed the Walsh car he heard a 'thump' caused by plaintiff's hand striking the left headlight of the Lewis car. He afterwards observed that his left headlight was smashed. Lewis testified that he was traveling within the speed limit at about 50 to 55 miles per hour and that at no time was his car in the westbound lane. None of the other witnesses who testified indicated in any manner that the Lewis vehicle was at any time outside of the eastbound lane of traffic. The testimony which was presented in the case corroborated that of defendant Lewis in this respect. Defendant Lewis also stated that he did not see the Walsh car attempting to pass any of the vehicles in front of him. Fred Carlson did not testify at the trial.
It is first contended by plaintiff that the trial court erred in directing a verdict for defendant Lewis. Plaintiff bases this argument on the assertion that although plaintiff and the witness Williamson testified that defendant Walsh crossed the center line, defendant Walsh said that he did not, and it follows (according to plaintiff) that the jury could have disbelieved his testimony and that of Williamson and believed that of defendant Walsh. Thus, it is contended by plaintiff that there was circumstantial evidence that the accident could not have occurred unless the Lewis vehicle crossed the center line. The evidence in the record, however, does not support plaintiff's argument in this respect. The evidence presented at the trial when taken in its aspect most favorable to plaintiff, so overwhelmingly favors defendant Lewis that a verdict against him on the record could never stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) It is obvious that the accident could have occurred even if neither of the cars had crossed the center line. On the basis of the evidence presented in the case it could well have been concluded that plaintiff's arm and upper body could have extended laterally from defendant Walsh's car and over the center line of the highway so as to allow plaintiff's hand to be struck by defe...
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