Schneidermn v. Interstate Transit Lines, Inc.

• Decision Date: 05 May 1947
• Docket Number: Gen. No. 43216.
• Citation: 72 N.E.2d 705,331 Ill.App. 143
• Parties: SCHNEIDERMN v. INTERSTATE TRANSIT LINES, Inc.
• Court: United States Appellate Court of Illinois

331 Ill.App. 143

72 N.E.2d 705

SCHNEIDERMN

v.INTERSTATE TRANSIT LINES, Inc.

Gen. No. 43216.

Appellate Court of Illinois, First District, First Division.

April 21, 1947.

Rehearing Denied May 5, 1947.

Appeal from Superior Court, Cook County; John F. Bolton, Judge.

Personal injury action by Jack Schneiderman against Interstate Transit Lines, Inc. Judgment for plaintiff, and defendant appeals.

Affirmed.Drennan J. Slater and Thomas J. Hamer, both of Chicago, for appellant.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.

FEINBERG, Justice.

Plaintiff recovered a judgment for $100,000.00 upon a verdict of a jury in the Superior Court of Cook County against defendant, in an action for damages for personal injuries sustained in a collision between his automobile and a bus, owned and operated by defendant. The jury also, in response to a special interrogatory submitted at defendant's request, found that the bus had been operated in a wilful and wanton manner. The trial court overruled defendant's motion for judgment notwithstanding the verdict and for a new trial, and the motion to require a remittitur and to vacate the special verdict.

On appeal from that judgment, this court, on a prior hearing, reversed the judgment of the trial court without remanding, and held that the trial court should have directed a verdict for defendant or have entered judgment for it, notwithstanding the verdict. Schneiderman v. Interstate Transit Lines, Inc., 326 Ill.App. 1, 60 N.E.2d 908 (The writer was not then a member of this court.)

On appeal to the Supreme Court, the judgment of this court was reversed and the cause remanded to this court with directions ‘to consider any other questions not previously considered and to either affirm the judgment or reverse it and remand the cause for a new trial.’ The opinion of the Supreme Court is reported in 394 Ill. 569, 69 N.E.2d 293, 300.

The facts involved in the accident, recited in the prior opinion of this court and in the opinion of the Supreme Court, will not, in the interest of brevity, be restated. The Supreme Court having determined that there was evidence sufficient to go to the jury respecting the liability of the defendant, there remains for this court to determine the question whether the verdict and judgment of the court are against the manifest weight of the evidence. The determination of such a question in any case involves a grave responsibility, which we are in duty bound to squarely meet and carefully discharge. Especially so, in view of the construction which the Supreme Court in its opinion has placed on much of the evidence in this record.

In approaching the question whether the verdict and judgment are against the manifest weight of the evidence, we must apply the principle so many times stated and repeated in Norkevich v. Atchison, T. & S. F. Ry. Co., 263 Ill.App. 1, wherein this court twice reversed the verdicts of juries on the sole ground that they were against the manifest weight of the evidence. Upon the third appeal, the same question was considered, the verdict was sustained, and this court said at page 15 of 263 Ill.App.: “There are many things which a jury observes on the trial in such case that do not appear from the printed record-the appearance of the respective witnesses, their manner of testifying and a great many other circumstances. They are in a much better position in such case to determine the truth of the matter in controversy than a court of review.' * * * Under the law we cannot disturb the verdict of the jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable.' (Italics ours.)

In Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343, at page 358, 143 N.E. 846, 852, 33 A.L.R. 1: ‘One of the recognized benefits of trial by jury is that the jury sees and hears the witnesses, which gives them superior advantage over a reviewing court in determining the ctedibility of the witnesses and the weight and credit that should be given their testimony.’

As was aptly said by our Supreme Court in People v. Hanisch, 361 Ill. 465, at page 468, 198 N.E. 220, 221: ‘The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury.’

The jury having found defendant guilty of wilful and wanton misconduct, defendant is liable for these injuries, unless it can be said upon the facts that plaintiff clearly was guilty of wilful and wanton misconduct. Walsh v. Gazin, 316 Ill.App. 311, at page 317, 45 N.E.2d 95.

The Supreme Court in the instant case said at page 582 of their opinion in 394 Ill., at page 300 of 69 N.E.2d: ‘There is evidence from which the jury might have found that defendant's driver exhibited a wilful and wanton disregard for the safety of others.’

Defendant contended in the Supreme Court that plaintiff cannot recover on the second count of the complaint, charging defendant with wilful and wanton misconduct, because plaintiff was guilty of wilful and wanton misconduct in ignoring the traffic control signal, and argued there that the evidence in the record clearly showed that plaintiff was guilty of wilful and wanton misconduct. It is significant that the Supreme Court did not say upon the evidence which they had before them that the evidence, and all reasonable inferences that could be indulged in for plaintiff, clearly showed plaintiff guilty of wilful and wanton misconduct, which would bar his recovery. We had said in our first opinion, at page 14 of 326 Ill.App., at page 913 of 60 N.E.2d: ‘The most favorable position that can be taken in his behalf is that he was guilty of negligence or wilful and wanton conduct in whatever degree the bus driver was guilty.’

Had the Supreme Court been impressed by the contention of defendant and had agreed with our conclusion, above quoted, it had the power to say that the evidence, viewed in its most favorable light, for the plaintiff, about which reasonable minds could not differ, clearly established, as a matter of law, that plaintiff was guilty of contributory negligence or wilful and wanton misconduct. Wabash Ry. Co. v. Brown, 152 Ill. 484, at page 488, 39 N.E. 273. If the Supreme Court has the power to determine, as a matter of law, with respect to the wilful and wanton misconduct of a defendant conversely it had the power to say the same thing concerning the plaintiff. Robertson v. New York Central R. R. Co., 388 Ill. 580, at page 586, 58 N.E.2d 527.

We have again carefully analyzed the evidence in this record. We cannot say that this plaintiff was guilty of wilful and wanton misconduct, which directly caused the accident in question. True, his testimony, as outlined in our prior opinion, was unsatisfactory. At times it was not coherent. This condition is clearly chargeable to the injuries inflicted upon him by the wilful and wanton misconduct of defendant. He should not be penalized because his memory has been impaired by this injury, if there are sufficient facts in this record to support his claim. This court held in its first opinion that he was not a competent witness because of his mental condition. With this conclusion the Supreme Court did not agree, and said on that subject at page 578 of 394 Ill., on page 298 of 69 N.E.2d: ‘We have referred to the record to study the exact language employed by plaintiff in making his answers and, in view of such answers and in the light of evidence of medical experts as to the character of his mental ailment and the effect it has had on his powers of speech, we conclude that he was competent to testify and that the Appellate Court erred in rejecting his testimony in toto. The discrepancies in answers given to the same or similar questions to a great measure indicate lack of control of the power of speech and under the circumstances shown it was for the jury to determine which answers would be given greater weight.’

At page 576 of 394 Ill., on page 297 of 69 N.E.2d, the Supreme Court said: ‘A fair sample of such incoherent and meaningless testimony is set forth in the Appellate Court opinion * * *. On the other hand, some of his answers are corroborated by other credible evidence.’ (Italics ours.)

The contention of defendant that plaintiff is also guilty of wilful and wanton misconduct is predicated upon his alleged violation of the statute (§ 32(a) of the Uniform Traffic Act, chap. 95 1/2, par. 129, Ill.Rev.Stat., 1945), claiming that plaintiff entered the intersection where the accident occurred against the red light.

The section in question, the Supreme Court, at page 579 of 394 Ill., at page 298 of 69 N.E.2d said: ‘* * * prescribes the rule by which traffic is moved at street intersections controlled by automatic stop-and-go lights. It directs that when the color green is exhibited, the traffic facing it shall move forward into the intersection. Such right of way, however, is subject to the provisions that the one advancing into the intersection with the green light ‘shall yield the right-of-way to other vehicle * * * lawfully within the intersection at the time such signal is exhibited.’ The first division of paragraph (b) prescribes the duty of the driver who approaches the intersection when the yellow light following the green is exhibited. It directs that when the yellow light flashes in front of him, he shall stop before entering the nearest crosswalk at the intersection ‘but if such stop can not be made in safety, a vehicle may be driven cautiously through the intersection.’'

Plaintiff, at one place in his testimony, claimed that he did not enter the intersection against the red light, that it was green. At another place he claims it was amber. If it...