Stegmann v. Zachariah

• Decision Date: 18 February 1964
• Docket Number: No. 64-F-21,64-F-21
• Citation: 46 Ill.App.2d 7,196 N.E.2d 703
• Parties: Helnrich STEGMANN, Plaintiff-Appellee, v. Philip L. ZACHARIAH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 703

196 N.E.2d 703

46 Ill.App.2d 7

Helnrich STEGMANN, Plaintiff-Appellee, v. Philip L. ZACHARIAH, Defendant-Appellant.

No. 64-F-21.

Appellate Court of Illinois, Fifth District.

Feb. 18, 1964.

Reed & Armstrong, Edwardsville, for appellant.

Griffith & Hoefert, Alton, for appellee.

WRIGHT, Justice.

This is an action by the plaintiff to recover damages occasioned by the alleged negligence of the defendant in the operation of his automobile. Defendant filed a counterclaim to recover damages occasioned by the alleged negligence of the plaintiff in the operation of his automobile. The issues made by the complaint and answer, the counterclaim and answer thereto, were submitted to a jury resulting in a verdict in favor of the plaintiff against the defendant in the sum of $1,500.00, and a verdict in favor of the plaintiff on the counterclaim of defendant. The trial court granted a remittitur in the sum of $500.00 and entered judgment for the plaintiff and against the defendant for the sum of $1,000.00, and entered a judgment for the plaintiff on the counterclaim of the defendant. Defendant appeals from the judgment entered against him.

Defendant contends that the plaintiff was guilty of contributory negligence and that defendant was free of any negligence as a matter of law and that, therefore, the trial court erred in refusing to direct verdicts for the defendant at the close of the plaintiff's case and at the close of all of the evidence.

Defendant further contends that the verdicts are contrary to the manifest weight of the evidence; that the court erred in giving Plaintiff's Jury Instruction No. 2 and that the court erred in allowing Plaintiff's Exhibit No. 3 to be introduced in evidence and taken to the jury room.

This action arises out of an automobile collision which occurred on September 25, 1962, at approximately 9:15 P. M. in the One Hundred block of Broadway Street in Alton, Illinois. Broadway Street at the scene of the collision runs east and west having four driving lanes and one lane next to the north curb and one lane next to the south curb for parallel parking. The two eastbound lanes of travel and the two westbound lanes of travel are marked by a center line, and there is a center line dividing the east and westbound lanes.

The defendant was driving his automobile in an easterly direction in the right hand eastbound lane. When he arrived at the end of the block, he noticed a car backing into the lane he was traveling in order to park at the south curb. The defendant then slowed his automobile and stopped in the right hand lane about a car length behind the parking space that the vehicle was backing into. While the defendant was so stopped he was struck in the rear by the automobile operated by the plaintiff, who was also traveling east in the right hand lane of traffic and to the rear of the defendant.

The evidence is conflicting as to what occurred immediately before and at the time of the collision. The evidence on behalf of the defendant is to the effect that there were no vehicles between plaintiff and defendant for a distance of at least one block, and that the plaintiff had a clear view of defendant's automobile, and the headlights and tail lights of defendant's car were burning at all times. There was evidence offered on behalf of defendant that the plaintiff was traveling at a fast rate of speed.

Plaintiff testified that prior to the collision he was following a small truck in the right hand eastbound lane of traffic and immediately prior to the collision the truck turned to the left and proceeded east in the left hand lane to pass defendant's stopped vehicle. Plaintiff further testified that he attempted to turn left to pass the defendant's stopped vehicle but was prevented from doing so because another vehicle was following close behind him in the left hand eastbound lane, and that he could not avoid colliding with defendant's stopped vehicle. Plaintiff also testified that defendant's tail lights were not on at the time of the collision but defendant turned them on afterwards and before the police arrived. He testified that just prior to the collision, he was driving twenty miles an hour.

We cannot say as a matter of law that the plaintiff was guilty of contributory negligence and that defendant was free from negligence. Questions of negligence and due care are ordinarily questions of fact for a jury to decide. Questions which are composed of qualities sufficient to cause reasonable men to arrive at different results should never be determined as a matter of law. The jury is the tribunal under our legal system to decide that type of issue. To withdraw from the jury the determination of questions of fact is to usurp its function. Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 51 A.L.R.2d 624. Similarly, under the conflicting evidence in the record before us, the verdict cannot be deemed to be contrary to the manifest weight of the evidence. Winters v. Richerson, 9 Ill.App.2d 359, 132 N.E.2d 673.

A motion for a directed verdict at the close of the plaintiff's case and at the close of all of the evidence presents the single question whether there is in the record any evidence, which standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Farr v. Chicago & Eastern I. R. R. Co., 8 Ill.App.2d 168, 131 N.E.2d 120. In reviewing the action of the court of which complaint is made, the evidence is not weighed. We look only at that which is favorable to the plaintiff. Olympia Fields Country Club v. Bankers Indem. Ins. Co., 325 Ill.App. 649, 60 N.E.2d 896; Rose v. City of Chicago, 317 Ill.App. 1, 45 N.E.2d 717. The fact that witnesses did not agree in every particular as to what occurred cannot be...