Tomlinson v. Chapman
| Decision Date | 28 January 1960 |
| Docket Number | Gen. No. 5906 |
| Citation | 24 Ill.App.2d 192,164 N.E.2d 240 |
| Parties | Lewis H. TOMLINSON, Plaintiff-Appellee, v. Herman CHAPMAN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Baker, Kagy & Wagner, east St. Louis, Bernard H. Bertrand, Francis D. Conner, East St. Louis, of counsel, for appellant.
Moran & Beatty, Granite City, for appellee.
This was a suit for personal injuries arising out of an automobile collision between a motor vehicle operated by plaintiff Lewis H. Tomlinson and a motor vehicle being operated by the defendant Herman Chapman. At the close of all the evidence, the court directed a verdict for the plaintiff on the question of liability and submitted only the question of damages to the jury. The jury awarded the plaintiff the sum of $20,000. The defendant brings this appeal asking that the judgment be reversed and the cause remanded to the trial court for a new trial. As grounds for the reversal, he complains that the court erred in directing a verdict finding the defendant liable and, in addition, complains that the verdict of the jury was excessive.
The occurrence in question took place at about 10:45 P.M. on the evening of November 7, 1957. It was raining at the time, and the night was foggy. The defendant and a girl friend had been riding around for several hours that evening and were descending a viaduct on Route 67 just outside of Madison, Illinois. The plaintiff was approaching the viaduct from the opposite direction. As the defendant proceeded, his right wheels went off the right side of the pavement, and his car began to skid as he attempted to bring it under control. The plaintiff, seeing the skidding defendant coming towards him, attempted to avoid the impending collision by turning to the right but was unable to do so, and the crash occurred.
The defendant strenuously argues that the trial court committed reversible error in directing a verdict for the plaintiff. It is the defendant's position that it could not be determined from the facts as presented that he was on the wrong side of the road and that his negligence caused the accident. He states that 'there is not one scintilla of evidence that the accident occurred on the plaintiff's side of the highway'. The defendant then cites elementary law to the effect that the motion should be denied if there is any evidence, standing alone, which tends to prove that the defendant was not negligent or that the plaintiff was guilty of contributory negligence. He further argues that the place of the occurrence of this collision is in such dispute that it presented a fact question which could not be taken from the jury. The trial judge was of the opinion that the defendant's own testimony, to the effect that his car went off the pavement and then, when he brought it back, skidded across the highway to hit plaintiff's car, which was on its proper side of the highway, showed defendant was guilty of negligence as a matter of law.
To properly respond to defendant's arguments, we must carefully examine all the evidence which bears upon this point to determine whether or not reasonable minds might have come to a different conclusion, (Tucker v. New York, Chicago & St. Louis Railroad Co., 12 Ill.2d 532, 147 N.E.2d 376; Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847) and whether or not defendant has shown a defense. Wallis v. Villanti, 2 Ill.App.2d 446, 120 N.E.2d 76. The only evidence on this subject offered during the trial was that given by the defendant, the plaintiff and the defendant's girl friend. We have examined their testimony from the record itself.
The plaintiff testified that when he first saw the defendant, the defendant was over on plaintiff's side of the road; that he then swung back on his own side and then came across again; that he, the plaintiff, applied his brakes and swung his car to the right to try to miss the defendant; and, that is all he remembers. On cross-examination, the plaintiff testified positively that the defendant came over on the plaintiff's side of the highway.
The defendant testified on direct examination that his right wheels dropped off the side of the highway, and that when he cut the wheels back, the car started to skid; that it skidded out towards the center. On cross-examination, defendant stated that he was skidding towards plaintiff's lane; that plaintiff was coming down his own side of the highway when the accident happened; and, that his skidding across the road was the cause of the accident.
The testimony of the defendant's friend merely verified that the right wheels of defendant's car slipped off the road, and defendant then skidded. She did not recollect seeing the plaintiff's vehicle prior to the accident, nor did she remember anything more about the occurrence.
Clearly, the evidence establishes that the sole cause of the accident was defendant's conduct. His driving too near the edge of the road precipitated the events leading to the collision. There is no evidence to establish, directly or by inference,...
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