Frozen Food Exp. v. Modern Truck Lines, Inc.

• Decision Date: 23 January 1967
• Docket Number: Gen. No. 66--34
• Citation: 223 N.E.2d 275,79 Ill.App.2d 84
• Parties: FROZEN FOOD EXPRESS, a Corporation, Plaintiff-Appellee, v. MODERN TRUCK LINES, INC., a Corporation, and Andrew J. Tharp, Jr., Defendants-Appellants. MODERN TRUCK LINES, INC., a Corporation, Counter-Plaintiff-Appellant, v. FROZEN FOOD EXPRESS, a Corporation, Counter-Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 275

223 N.E.2d 275

79 Ill.App.2d 84

FROZEN FOOD EXPRESS, a Corporation, Plaintiff-Appellee, v. MODERN TRUCK LINES, INC., a Corporation, and Andrew J.

Tharp, Jr., Defendants-Appellants.

MODERN TRUCK LINES, INC., a Corporation, Counter-Plaintiff-Appellant, v. FROZEN FOOD EXPRESS, a Corporation, Counter-Defendant-Appellee.

Gen. No. 66--34.

Appellate Court of Illinois, Fifth District.

Jan. 23, 1967.

Pope & Driemeyer, Listeman, Bandy & Hamilton, East St. Louis, for appellants.

Wham & Wham, Centralia, for appellee.

GOLDENHERSH, Justice.

Defendants, Modern Truck Lines, Inc., and Andrew J. Tharp, Jr., appeal from the judgment of the Circuit Court of Marion County entered on a jury verdict in the amount of $6,500.00. Defendant, Modern Truck Lines, Inc., also appeals from the judgment entered in favor of plaintiff, Frozen Food Express, on its counterclaim.

The evidence shows that Jake Tarlton owned a tractor which was leased to plaintiff. On April 28, 1964, he was pulling a trailer owned by plaintiff, and was driving in a northerly direction on Route 3. At that time, defendant, Andrew J. Tharp, Jr., was driving a tractor-trailer unit owned by defendant, Modern Truck Lines, Inc., in a southerly direction on Route 3. At a point about 3 miles north of Chester, in Randolph County, the vehicles collided. Plaintiff sued for damages to its trailer, defendant, Modern Truck Lines, Inc., counterclaimed for damages to its vehicle, and the trial resulted in the verdicts and judgments from which defendants appeal.

Defendants contend that the trial court erred in refusing to direct a verdict in their favor on plaintiff's suit and alternatively, that the judgments should be reversed and the case remanded for a new trial because the verdicts are against the manifest weight of the evidence. Defendants also contend that the trial court committed reversible error in permitting James Herod, a witness called by plaintiff, to testify, and in thereafter denying defendants' motion to strike his testimony.

The evidence shows that the collision occurred near the center of a curve. The curve is banked with the low side to the east. For the northbound vehicle (plaintiff's), the curve was to the right; for the southbound vehicle, the curve was to the left. Both vehicles approached the curve at a speed of approximately 40 miles per hour. It was nighttime, and dark, and the road was wet. The tractors passed without mishap, and the left side of the northbound trailer collided with the left side of the southbound tractor and trailer. Both drivers testified that as the tractors passed, they were on their own sides of the road. Plaintiff's driver stated that he felt an impact, his unit started bouncing around, the impact had knocked the air line loose and he had no brakes, and his vehicle rolled to a stop about 30 yards down the road, and came to rest partly on the east side of the pavement and partly on the east shoulder. He stated that he was 'pretty sure' his trailer had not skidded, and he would have felt it, had it skidded.

Defendant's driver, Tharp, testified that the tractors passed without colliding, each tractor was on its own side of the road, and when the tractors passed, he saw the 'tail end' of plaintiff's trailer sliding toward him, in the west or southbound lane. He stated that both his tractor and trailer, at all times, were in the southbound lane. His vehicle came to rest on the west shoulder.

A State Trooper, called to the scene, testified that the road was very slick, that there were gouge marks on the pavement which had been made by the vehicles, and he was unable to determine which unit was across the center line.

Plaintiff called two additional witnesses, who testified they were in an automobile traveling south behind defendants' tractor-trailer, but they did not know on which side of the highway the impact occurred.

'The ruling on the motion for directed verdict is tested by taking only the evidence favorable to plaintiff and drawing legal inferences most favorable for him to decide whether there is any evidence to prove the elements of his case.' Wilinski v. Belmont Builders, Inc., 14 Ill.App.2d 100, 103, 143 N.E.2d 69, 71.

'(R)easonable inferences may be drawn by a jury from established facts, and a verdict may not be set aside merely because the jury could have drawn different inferences from the evidence'. Stowers v. Carp, 29 Ill.App.2d 52, 63, 172 N.E.2d 370, 375.

In Brayfield v. Johnson, 62 Ill.App.2d 59, at page 63, 210 N.E.2d 28, at page 30, this Court said: 'A court of review can set aside a verdict as being against the manifest weight of the evidence only when it is obvious or clearly evident that the jurors have arrived at an incorrect result. Romines v. Illinois Motor Freight, Inc., 21 Ill.App.2d 380, 158 N.E.2d 97 (1959). It is for the jury alone to determine the credibility of witnesses and the weight of the evidence on controverted questions of fact. A verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless contrary to the manifest weight of the evidence; that is, an opposite conclusion must be clearly evident. Ritter v. Hatteberg, 14 Ill.App.2d 548, 145 N.E.2d 119, (1957). Manifest means clearly evident, clear, plain, indisputable. Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 72 N.E.2d 705 (1947).'

We have examined the testimony and the photographs, and applying the above stated rules to this record, we conclude that the trial court did not err in denying defendants' motions for directed verdict, and the verdicts are not against the manifest weight of the evidence.

During the first day of trial, on Monday, April 19, 1965, plaintiff called as its second witness, one James Herod. Defendants' counsel asked for a recess, and the court and counsel retired into chambers. Defendants' counsel stated to the court that the name of James Herod had not been furnished in answer to their interrogatories, he had not been listed in plaintiff's pre-trial conference memorandum, filed on April 15, 1965 and the first notice to defendants of plaintiff's intent to call Herod as a witness was in a telegram which defendants' attorney received on Saturday, April 17, 1965. Sunday, April 18, was Easter. Defendants moved to exclude Herod as a witness.

Plaintiff's counsel advised the court that he had sent the telegram in question on April 16th, upon learning, that day that Herod could testify to an oral admission made by defendant, Tharp, driver of defendants' truck.

The court denied defendants' motion and permitted Herod to testify. He stated that he was a self-employed, independent adjuster, and was employed by plaintiff to investigate the collision between plaintiff's and defendants' trucks. He interviewed defendant, Tharp, twice. The first interview was in the hospital at Chester, at about 9:00 or 10:00 A.M. on the morning following the collision. He testified that the substance of what Tharp told him was: 'Well, the main thing he brought out was that he was driving down the highway and that he met two vehicles and as soon as these two cars passed he reached over to get a pack of cigarettes or get a cigarette out of a pack, and as he raised up it happened--it was right in front of him.'

He saw Tharp again approximately a week later, at Tharp's home in Barlow, Kentucky. As to what transpired on that occasion, he testified: 'First of all I got his name and that sort...