Krotke v. Chicago, R. I. & P. R. Co.

• Decision Date: 18 April 1974
• Docket Number: No. 55903,55903
• Citation: 327 N.E.2d 212,26 Ill.App.3d 493
• Parties: John KROTKE, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 212

327 N.E.2d 212

26 Ill.App.3d 493

John KROTKE, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, et al Defendants-Appellees.

No. 55903.

Appellate Court of Illinois, First District, Third Division.

April 18, 1974.

On Rehearing Feb. 6, 1975.

[26 Ill.App.3d 495] James A. Dooley, Chicago, for plaintiff-appellant.

Kirkland & Ellis, Chicago, for defendants-appellees; Leo K. Wykell, Chicago, of counsel.

McNAMARA, Presiding Justice:

Plaintiff commenced this action in the circuit court of Cook County to recover damages for serious injuries sustained on December 9, 1952, while on defendant's platform awaiting the arrival of a passenger train. At the first trial, a jury was unable to reach a verdict. A second trial was held in which a verdict was returned in favor of plaintiff in the amount of $150,000. The trial court, holding that plaintiff was guilty of contributory negligence as a matter of law, granted defendant's motion for judgment notwithstanding the verdict and plaintiff appeals.

The first issue presented by plaintiff is that defendant's post-trial motion, although filed pursuant to stipulation, was not proper since under Supreme Court Rule 303(a) such a motion must be filed within 30 days after entry of the original judgment. Hence plaintiff argues that the trial court did not have jurisdiction over defendant's post-trial motion, that the original judgment must stand, and that this court does not have jurisdiction to entertain the appeal.

On November 25, 1969, judgment was entered for plaintiff upon the verdict of the jury. On December 22, 1969, defendant's counsel telephoned counsel for plaintiff, and it was agreed that plaintiff would not object to an extension of time within which defendant could file its post-trial motion. On the following day, plaintiff received, executed, and mailed a written stipulation to defendant in which it was agreed that the time in which to file post-trial motions 'be and the same is hereby continued to and including the 26th day of January, 1970.' Christmas, December 25, 1969, fell on a Thursday. In recognition of the holiday, the circuit court of Cook County had adopted an order extending the time of doing any act to be done on the 25th, 26th, or 27th to December 29, 1969. The record is silent as to when defendant received the signed stipulation. (Defendant maintains that it was received at 3:30 p.m. on December 29.) However, the stipulation was filed with the trial court on December 30, the 31st day after judgment, and an order was entered continuing and extending the time in which to file the post-trial motions to and including January 26, 1970. The order was typewritten, with the printed words 'Over objection of plaintiff' appearing at the end of the order. On January 20, 1970, defendant filed its post-trial motion. Several months later, on September 4, 1970, plaintiff filed a motion to strike defendant's post-trial motion, alleging lack of jurisdiction on the part of the trial court to extend the time for filing. The trial court denied plaintiff's motion to strike, and on January 7, 1971, the court entered judgment n.o.v. for defendant.

Supreme Court Rule 303(a) provides that the court acquires jurisdiction of a matter when a notice of appeal is filed with the clerk of the circuit court within 30 days after the entry of an order disposing of a post-trial motion which has been 'timely' filed. (Ill.Rev.Stat.1971, ch. 110A, par. 303(a).) And section 68.1(3) of the Illinois Civil Practice Act provides that a post-trial motion must be filed '* * * within 30 days after the entry of judgment * * * or within any further time the court may allow within the 30 days or any extensions thereof.' Ill.Rev.Stat.1971, ch. 110, par. 68.1(3).

As a general rule, a court loses power through the passage of time after rendition of its judgment to review the same. (Cook v. Wood (1860),24 Ill. 295; Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294.) As an exception to the foregoing rule, it has been expressly held that a court, after 30 days, has the power to alter, modify, or set aside its judgment with the consent of the parties. Humphreyville v. Culver, Page, etc. (1874), 73 Ill. 485. See also Brown v. Miner (1951), 408 Ill. 123, 96 N.E.2d 530; Rossiter v. Soper (1943), 384 Ill. 47, 50 N.E.2d 701.

We believe that a rule based upon the consent exception enunciated in Humphreyville and its progeny is proper in the present case, and that the time for filing defendant's post-trial motion was validly extended by stipulation of the parties. The statute imposing a time limitation within which a party must file his post-trial motion is not inconsistent with the inherent power of courts of general jurisdiction to enter orders modifying or vacating their judgments pursuant to the express consent and agreement of all the interested parties. (See Sheridan v. City of Chicago (1898), 175 Ill. 421, 51 N.E. 898.) It was within the discretion of the trial court, at the time the stipulation was presented and the order of extension entered, to determine whether the stipulation was valid and whether the time agreed upon within which to file was reasonable. The time stated in the order clearly was reasonable and plaintiff does not contest the validity of the stipulation. Plaintiff has waived his right to rely on the absolute finality of the judgment as provided in section 68.1(3), and thus is not prejudiced by our holding. He cannot complain of that which he has agreed to do. Rossiter v. Soper, supra; Roin v. Checker Taxi Co., Inc. (1962), 36 Ill.App.2d 447, 184 N.E.2d 736; Holmgren v. Newcom (1971), 133 Ill.App.2d 76, 272 N.E.2d 820.

We do not accept plaintiff's argument that by application of our holding the parties may extend the time within which an appeal shall be filed. Rule 303(a) contains the restriction that a notice of appeal shall be filed within 30 days after the disposition of a 'timely' post-trial motion. We have held that the motion was timely. No lapse in time resulted from the granting of the extension by consent and the parties were aware of the time limits in which to file a notice of appeal.

In Martin v. New York, C. & St. L.R. Corp. (1952), 346 Ill.App. 467, 105 N.E.2d 122 (abstract), a case heavily relied upon by plaintiff, this court held that a post-trial motion was not filed in due time. In that case judgment was entered on October 17, and on October 25 an order was entered extending the time in which to file 'to' November 15. By stipulation of the parties, an order was entered on November 15 extending the time in which to file 'to' November 22. This court upheld the decision of the trial court that the motion was not filed in due time, finding that the word 'to' did not mean 'to and including.' The court did not reach the issue, similar to that involved in the present case, of whether the trial court had jurisdiction to enter the stipulated order of extension on November 15.

We are here concerned with the court's power or authority with respect to a judgment which has been entered. A judgment, at some point in time, must become final as to all parties. When one party is able to unilaterally contest a judgment for an indefinite period of time, the opposing party is prevented from relying on that judgment and a mockery is made of the court's power and the judgment it renders. However, where both parties agree to a course of action which does not burden the court or diminish its power to render a final judgment, the interest of justice is furthered. We therefore hold that the trial court had the authority and jurisdiction to enter an order upon the agreement of the parties extending the time within which to file a post-trial motion notwithstanding the fact that the order was entered subsequent to the expiration of 30 days after the entry of the judgment. Having found that the post-trial motion was timely, we proceed to consider the merits of plaintiff's appeal.

Plaintiff contends that the doctrine of res ipsa loquitur is an aspect of circumstantial evidence and that plaintiff's case was adequately proved by circumstantial evidence. He further argues that the trial court erred in granting judgment n.o.v. on the issue of contributory negligence because it was a question of fact, not of law.

On December 9, 1952, plaintiff, John Krotke, was standing on defendant's platform located at 103rd Street in the City of Chicago. Defendant's railroad tracks run north and south at the station. Plaintiff was standing on the west platform waiting for a southbound train. Six persons, in addition to plaintiff, were on the platform at the time.

Plaintiff and Mrs. Bell testified that plaintiff was pacing up and down the platform, two or three feet from its track edge. Plaintiff testified that it was a beautiful day with perfect visibility and that it was not unusually noisy around the station at the time of his injury. He did not hear the crossing gate bells, the train's bell or whistle, or the noise of the train as it pulled into the station. Mrs. Bell, sitting on the station's bench with her daughter and four grandchildren, testified that she heard the flasher signals at 103rd Street as the southbound train approached the station. She also heard the train and its warning bell. Mrs. Bell further testified that, as the train came into the station from the north, plaintiff walked south along the platform, still approximately two or three feet west of the edge of the platform. After the first few cars of the train had passed him, she noticed that he was lying on the platform. She did not see the train come in contact with him. Plaintiff testified that he felt as though he was hit 'by a ball bat' and did not know what happened afterwards. He was found lying unconscious on the platform with his head to the north. He was about three feet from the edge of the platform and bleeding from the head behind his left ear.

Joseph Clan, the train engineer,...