Freeman v. Chicago Transit Authority

• Decision Date: 24 June 1965
• Docket Number: No. 38805,38805
• Citation: 210 N.E.2d 191,33 Ill.2d 103
• Parties: Grace FREEMAN et al., Appellees, v. The CHICAGO TRANSIT AUTHORITY, Appellant.
• Court: Illinois Supreme Court

Page 191

210 N.E.2d 191

33 Ill.2d 103

Grace FREEMAN et al., Appellees, v. The CHICAGO TRANSIT AUTHORITY, Appellant.

No. 38805.

Supreme Court of Illinois.

June 24, 1965.

Rehearing Denied Sept. 27, 1965.

William J. Lynch, William S. Allen, Jerome F. Dixon, and Erwin Wright, Chicago, for appellant.

Herzl E. Levine, Chicago (Herbert Veldenz and Vera Cuthbert, Chicago, of counsel), for appellees. SCHAEFER, Justice.

This action was brought by Roger Freeman and his wife, Grace, to recover for personal injuries and property damages alleged to have been suffered when a Chicago Transit Authority bus ran into the rear of the Freeman's car. The accident occurred at a rather complicated intersection of three streets, controlled by several traffic lights, at a time when the streets were wet following a snowfall. The case was tried to a jury. At the defendant's request the following special interrogatory was submitted: 'Was the defendant's bus driver, Raymond Jenkins, at the time and place in question, guilty of negligence that proximately contributed to cause the occurrence in question?' The jury answered 'No', but also returned a general verdict in favor of the plaintiffs for $2,500 each.

The defendant moved for judgment notwithstanding the verdict. The plaintiffs filed a post-trial motion in two parts. In one part they requested alternatively an additur or a new trial, and in the other, judgment notwithstanding the verdict or in the alternative a new trial. In support of their motion the plaintiffs argued that the verdict was against the manifest weight of the evidence, that the judge committed prejudicial errors concerning the admission of evidence, and that it was error to submit the special interrogatory because the evidence showed the bus driver to have been negligent as a matter of law. The trial judge denied the post-trial motions of both parties, but on his own motion set aside the special finding of the jury on the ground that it was against the manifest weight of the evidence, entered judgment on the verdicts.

The appellate court sustained the action of the trial judge in setting aside the special interrogatory, but reversed the judgment and remanded the case for a new trial. (50 Ill.App.2d 125, 200 N.E.2d 128.) We allowed the defendant's petition for leave to appeal.

The first issue before us concerns the action of the trial court in setting aside the answer to the special interrogatory. The defendant contends that the court had no authority to do so upon its own motion. The plaintiffs argue first, that the court acted in response to their post-trial motion, and second, that in any event the trial court had inherent power to set aside the answer on its own motion. As to the first of these arguments we agree with the appellate court that a motion which specifically directed the attention of the trial judge to the proposition that the evidence showed the driver of the bus to be guilty of negligence as a matter of law did not raise any question concerning the weight of the evidence.

We also agree with the appellate court that the action of the trial court was nevertheless proper. The defendant's contention to the contrary rests upon the proposition that section 68.1(2) of the Civil Practice Act bars a trial judge from considering any grounds not raised by a party in his written post-trial motion. Section 68.1(2) provides: 'The post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief. * * * A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.' (Ill.Rev.Stat.1961, chap. 110, par. 68.1(2).) While the section thus confines a litigant, upon appeal, to those matters specifically raised in the trial court, it contains nothing that suggests an intention to interfere with the power of a trial court to act upon its own motion.

The function of a trial judge in determining whether the answer to a special interrogatory is against the manifest weight of the evidence is analogous to his function in determining whether a general verdict is against the weight of the evidence, and his authority to act upon his own motion should be the same in both instances. Orders granting new trials were not appealable at all until the Civil Practice Act became effective in 1934, and apparently the authority of a trial court to grant a new trial on its own motion has not been considered by this court. But in those jurisdictions that have considered the question the power is firmly established. Fort Wayne & Belle Isle Ry. Co. v. Wayne Circuit Judge, (1896) 110 Mich. 173, 68 N.W. 115; Bank of Willmar v. Lawler (1899) 78 Minn. 135, 80 N.W. 868; Clark v. Great Northern Ry. Co. (1905) 37 Wash. 537, 79 P. 1108, 2 Ann.Cas. 760; see cases collected, 48 A.L.R. 362, 23 A.L.R.2d 852; cf. F.R.Civ.P. Rule 59.) These decisions are based upon a recognition that the role of a trial judge is not that of a presiding officer or an umpire, and that he is responsible for the justice of the judgment that he enters. The defendant's argument would take away that responsibility and tend to reduce his role to that of an automaton.

The second issue before us concerns the action of the appellate court in granting a new trial. Section 65 of the Civil Practice Act provides: 'When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.' (Ill.Rev.Stat.1963, chap. 110, par. 65.) In this case the special finding could not control the general verdict, because it was, as the trial court determined, against the manifest weight of the evidence. Although it was therefore set aside, the contradictory conclusion that it expressed indicated that the jury misunderstood the issues or disregarded the court's instructions. A majority of this court is therefore of the opinion that the appellate court properly granted a new trial.

The appellate court also considered certain problems that were likely to recur upon another trial, and we find it necessary to discuss some of them. The extent and duration of the injuries suffered by the plaintiffs was sharply disputed, and because the symptoms of prolonged disability were largely subjective, their credibility was important. On cross-examination of Roger Freeman it was developed that he had been convicted of the crime of larceny by bailee. The plaintiffs contend that it was error to admit evidence of the conviction on the ground that only those crimes classified as 'infamous at the common law or under our statutes' (Matzenbaugh v. People ex rel. Galloway, 194 Ill. 108, 113, 62 N.E. 546, 548), may be shown to impeach the credibility of a witness, and that larceny by bailee is not such a crime. But...