Greinke v. Yellow Cab Company

• Decision Date: 10 January 1958
• Docket Number: No. 12032.,12032.
• Parties: Dennis GREINKE, a minor by William L. Greinke, his father and next friend, Plaintiff-Appellee, v. YELLOW CAB COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

250 F.2d 865 (1958)

Dennis GREINKE, a minor by William L. Greinke, his father and next friend, Plaintiff-Appellee, v. YELLOW CAB COMPANY, Defendant-Appellant.

No. 12032.

United States Court of Appeals Seventh Circuit.

January 10, 1958.

Julius Jesmer, Wyatt Jacobs, Chicago, Ill., Joseph B. Lederleitner, Chicago, Ill., William L. Eifrig, Jesmer & Harris, Chicago, Ill., Jacobs, Miller, Rooney & Lederleitner, Chicago, Ill., of counsel, for appellant.

Philip H. Corboy, Gerald M. Chapman, Chicago, Ill., for appellee.

Before FINNEGAN, HASTINGS and PARKINSON, Circuit Judges.

PARKINSON, Circuit Judge.

This appeal is from a judgment on a jury verdict for the plaintiff in the sum of $15,000 in a common law negligence action.

The accident, out of which this action arose, occurred on Sunday afternoon, January 16, 1955, when a taxicab of the defendant collided with the plaintiff, a nine year old boy, as he was crossing Milwaukee Avenue in Chicago on foot in the middle of the block.

The undisputed evidence is that the driver of the defendant's taxicab did not sound his horn upon sighting plaintiff but immediately put on his brakes, leaving skid marks for approximately 60 feet on a dry concrete pavement, before colliding with the plaintiff. However, contrary to the defendant's contention, the other evidence on the question of negligence was conflicting.

The defendant contends that this court must follow the rule of appellate review for the State of Illinois and has a duty to determine "the issue of whether the manifest weight of the evidence supports or fails to support the verdict." As to whether there is a distinction with or without a difference between the law of appellate review in Illinois and the federal courts is a question we need not decide for the very elemental reason that the verdict here is not against the manifest weight of the evidence.

The defendant in its Appendix gives the evidence of the witnesses in narrative form and the testimony of Dorothy Kupersanian, one of plaintiff's witnesses, is quoted by the defendant therein as follows:

"The boy (plaintiff) did not run at any time. Milwaukee Avenue is a little wider than this courtroom so if the cab driver (defendant\'s driver) did not want to run over the boy as he was slowly walking across the street, he could have gone in back or in front of him. He could have avoided running over this boy with just the slightest effort. * * * To my knowledge he made no effort whatever to avoid running over the boy." (Our emphasis.)

The defendant in its reply brief informs us that this court is not being asked to pass upon the credibility of the witnesses. Of course, that is within the exclusive province of the jury under the law of Illinois. Eizerman v. Behn, 1956, 9 Ill.App.2d 263, 275, 132 N.E.2d 788. To paraphrase the language of the Appellate Court of Illinois in that case and of the Supreme Court of Illinois in the case of Roller v. Kurtz, 1955, 6 Ill.2d 618, 626, 129 N.E.2d 693, the jury apparently believed the witnesses of the plaintiff. This court cannot substitute its judgment for that of the jury in passing on the credibility of witnesses where a conflict in testimony exists. It is the peculiar province of the jury to determine which witnesses were right and which were wrong. A decree approving the conclusion of the jury under such a state of the evidence will not be disturbed on appeal. The verdict was not against the manifest weight of the evidence and the District Court did not err in overruling defendant's...