Royer v. Graham

• Decision Date: 02 January 1964
• Docket Number: Gen. No. 10479
• Citation: 195 N.E.2d 244,45 Ill. App. 2d 22
• Parties: Elizabeth M. ROYER, as Administrator of the Estate of Glen R. Royer, Deceased, Plaintiff-Counter Defendant-Appellee, v. Robert L. GRAHAM, as Administrator of the Estate of James A. Graham, Deceased, Defendant-Counter Plaintiff-Appellant.
• Court: United States Appellate Court of Illinois

Page 244

195 N.E.2d 244

45 Ill.App.2d 22

Elizabeth M. ROYER, as Administrator of the Estate of Glen R. Royer, Deceased, Plaintiff-Counter Defendant-Appellee, v.Robert L. GRAHAM, as Administrator of the Estate of James A Graham, Deceased, Defendant-Counter Plaintiff-Appellant.

Gen. No. 10479.

Appellate Court of Illinois, Third District.

Jan. 2, 1964.

Greanias & Owen, Decatur, for appellant.

Fribley & LaCharite, Pana, for appellee.

ROETH, Justice.

This action is brought by the plaintiff under the Wrongful Death Statute for the death of Glen R. Royer, allegedly caused by Robert Graham.On October 14, 1961, two automobiles, one operated by Royer and one by Graham, collided killing both drivers.The administrator of the Graham estate filed a counterclaim and a after trial by jury a verdict was returned in favor of the plaintiff on the complaint and against defendant on the counterclaim and judgment entered thereon.For purposes of clarity hereafter the decedent Royer will be referred to as plaintiff and the decedent Graham as defendant.Defendant appeals from the judgment entered in favor of plaintiff on the complaint but no appeal is taken from the judgment against the defendant on the counterclaim.

Counsel contends that the verdict is contrary to the law and evidence, that there is no competent evidence to sustain the jury's verdict as to negligence of the defendant or dur care of the plaintiff and that the trial court erred in excluding certain evidence and refusing one of defendant's instructions.Defendant also contends that the judgment is against the manifest weight of the evidence.

The complaint charged defendant with negligently driving his automobile on the wrong side of the highway contrary to paragraph 152 of Chapter 95 1/2 Illinois Revised Statutes.The issue of negligence and due care therefore had to be determined by a finding of where the collision occurred, in the lane of traffic plaintiff was traveling or in the lane of traffic defendant was traveling.

Defendant's first contention is that where circumstantial evidence is relied upon to prove ultimate facts in issue, such facts are not proven unless such circumstantial evidence reasonably tends to prove such facts to the exclusion of any other reasonable hypothesis.

The law applicable in considering a motion for directed verdict and for judgment notwithstanding the verdict, such as were filed in this case and overruled by the lower court, has been stated over and over again by the courts.In Coulson v. Discerns et al., 329 Ill.App. 28, 66 N.E.2d 728, the court said:

'On a motion for directed verdict for defendant, the evidence is considered in its aspect most favorable to the plaintiff, with all the inferences reasonably deducible, to determine whether there is a total failure to prove an element essential to the maintenance of the cause of action alleged.When so considered, if there is no evidence which tends to prove an essential element of plaintiff's cause of action, a motion to direct a verdict in favor of defendant should be granted.* * * No inference of negligence arises from the happening of an automobile accident.* * * The existence of a certain fact cannot be reasonably inferred from the evidence when the existence of another fact inconsistent with the first can be inferred from the same evidence with equal certainty.'

In McGregor v. Reid, Murdoch & Co., 178 Ill. 464, 53 N.E. 323, the court in stating the above rule and the court's duty in applying it said:

'* * * all just inferences to be drawn from it in appellant's favor, must be conceded to him. * * *'

'The credibility of the witnesses, the weight of the testimony, the drawing of the inferences of fact from facts proved, were all questions of fact for the jury to pass upon, and not for the court to decide.'

In Devine v. Delano, 272 Ill. 166, 111 N.E. 742, the Supreme Court stated:

'If there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, a verdict should not be directed.* * * There was no eye-witness to the accident, and hence the question whether deceased was knocked off by the post depends upon the inferences to be drawn from the testimony.'Circumstantial evidence' is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.* * * A greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be required to establish controverted facts. * * *'

In Hurst v. Madison Coal Corporation, 201 Ill.App. 205, it was said:

'It (negligence) may be proven by circumstantial evidence.If such evidence is sufficient in the eyes of the law to fairly warrant a finding that it exists a verdict based on it will not be set aside on appeal because it is not supported by positive proof.It is for the jury to determine that fact from the evidence.Negligence or proximate cause are not questions of law, unless the evidence leaves no opportunity for two fair minds to differ on what the facts are. * * *'

The evidence that must be considered in arriving at our decision is as follows.The collision occurred on Route 48 approximately one mile south of the Village of Blue Mound.Plaintiff was traveling in a southwesterly direction and defendant in a northeasterly direction.The road is blacktopped with a broken white center line and a solid white line running along each edge.It is a straight road from the edge of Blue Mound to the point of the impact, a distance of approximately one mile, and for a substantial distance south of the point of the impact.From the exhibits it appears to run straight for at least a mile and certainly for as far as the eye can see on the photograph.The collision occurred around 1:30 A.M. on a clear evening in an unlighted rural area.The only semblance of a witness to the collision was a truckdriver who testified that he first observed plaintiff's automobile traveling in a southwesterly direction down the highway as he, the witness, was leaving the Village of Blue Mound.Plaintiff's automobile was about 2 1/2 to 3 blocks ahead of him and the two vehicles traveled at about 45 miles per hour, the two vehicles staying about the same distance apart up to the point of impact.That as he followed plaintiff prior to the collision, plaintiff's automobile appeared to stay on the same side of the road as the truck and traveled in a straight direction.He saw the oncoming car, then an explosion.He flipped on his bright lights and saw defendant's car and a cloud of dust.At the time defendant's car looked like it was coming right at him and then veered into the cornfield.During all this time the witness stated he was in the west side or southbound lane of the highway.

After the collision the two cars were about 200 feet apart with plaintiff's automobile on the right or west side of the road with its rear end just a few feet off the pavement facing in a northwesterly direction and defendant's car was on the left or east side of the road, the front end in a cornfield facing north.The left front corner of each vehicle was completely demolished.On cross examination counsel for the defendant exacted from the aforesaid witness an admission that he could not see the road surface when he observed plaintiff's car prior to the collision and was only assuming that it was in its proper lane and assuming when he stated that defendant's car appeared to be in the southbound lane after the collision.

The aforesaid witness testified he noted considerable debris made up of glass, dirt, rocks, material and road oil on the road and specifically referred to an area directly behind plaintiff's disabled automobile.There, a considerable amount of debris had been deposited.He identified the area in a photograph, one of plaintiff's exhibits.Other witnesses appearing at various times after the collision also testified as to the presence of this debris in the area immediately behind plaintiff's automobile.The witnesses all testified to a number of scuffs and scratches in the blacktop surface of the highway.The marks ran from plaintiff's automobile to the defendant's automobile.The testimony established, as well as the photographs, a streak or stain caused by either oil or antifreeze.The stain started at a point either right on the center line or just a little to the west of the center line, then proceeded in a northeasterly direction to the east shoulder of the road running off the road onto the shoulder behind the spot where defendant's automobile came to rest.While the testimony showed that there was debris scattered from the spot where plaintiff's car came to rest in a diagonal line across the highway to the point where defendant's car came to rest, most of the debris was situated in the south-bound or west half of the...