Villa v. Crown Cork & Seal Co.

• Decision Date: 05 September 1990
• Docket Number: No. 1-89-1832,1-89-1832
• Citation: 148 Ill.Dec. 372,202 Ill.App.3d 1082,560 N.E.2d 969
• Parties: , 148 Ill.Dec. 372 Joseph VILLA, Plaintiff-Appellant, v. CROWN CORK & SEAL COMPANY, a corporation, and Ronald Kukla, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 969

560 N.E.2d 969

202 Ill.App.3d 1082, 148 Ill.Dec. 372

Joseph VILLA, Plaintiff-Appellant, v. CROWN CORK & SEAL COMPANY, a corporation, and Ronald Kukla Defendants-Appellees.

No. 1-89-1832.

Appellate Court of Illinois First District, Third Division.

Sept. 5, 1990.

Gabrielle S. Davis, of Heller & Richmond, Ltd., Chicago, for plaintiff-appellant.

Robert P. Harris of Harold A. Harris, Ltd., Chicago (Robert P. Harris and John Sanchez, of counsel), for defendants-appellees.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, Joseph Villa, brought this action in the circuit court of Cook County to recover damages for injuries he sustained in a car-truck collision. Following a jury trial, a verdict was rendered in favor of plaintiff and against defendants, Crown Cork & Seal Company and Ronald Kukla. The jury attributed 99% of the fault to plaintiff and he now appeals.

The collision occurred on an unnamed, two-lane road connecting Lawndale Avenue and Pulaski Road in Chicago. According to defendants, the road runs in a general east-west direction and contains some sharp curves, which temporarily lead traffic in a north-south direction. At the corner of Pulaski Road and the unnamed road, a sign is posted which states "City of Chicago, private road, city vehicles only." The City Department of Streets and Sanitation vehicle garage is located at the Lawndale end of the road.

On October 16, 1984, at about 3:15 p.m., plaintiff, who was employed by the Department of Streets and Sanitation, left work driving south on the unnamed road. Although visibility was good, it was drizzling. The road was wet and had been made slick because of oil and debris from other vehicles. According to plaintiff, he was travelling at a rate of about 10 to 15 miles per hour. As he entered a curve on the road, he slowed his speed to 10 miles per hour. In an attempt to negotiate the curve, plaintiff applied his brakes. Defendants' truck was over the center, yellow line, in plaintiff's lane. Plaintiff's car slid into the center of defendants' trailer.

Defendant Kukla's version of facts differs. According to him, at the time of the collision, he was driving a truck with a 12 1/2-foot wide, 45-foot long trailer. Defendant was travelling in the opposite direction of plaintiff on the unnamed road. He approached the curve slowly, in first gear, travelling at about 2 miles per hour. As plaintiff's car entered the curve, it slid and began to fishtail. It hit the trailer section of the truck, stopping underneath it. After the collision, defendant told plaintiff not to move his vehicle, in order that the police or any other investigators could take pictures of the scene. However, plaintiff refused and moved his car away from the truck. At the time of the collision, plaintiff, according to defendant's estimate, was travelling at about 20 miles per hour.

Defendant Kukla further testified that he had been driving semi-tractor trailer trucks for 30 years. Additionally, he had negotiated this curve many times in the past, sometimes three or four times a day. He stated that at no time did his truck cross the center line on the road.

Edward Bloom, a photographer, took photographs of the scene of the collision in October 1984 and again in March 1989. In explaining his photographs, he testified that he had measured the road surface, which, from the center of the curve, was 500 feet. According to him, in order for defendants' trailer to maneuver to the left on the curve where the collision occurred he would have to go further right, into the other lane of traffic. On cross-examination he stated that his measurement of the road surface was done by foot-to-heel, and was only an approximation, which did not include the gravel shoulder of the road. ^*

As a result of the collision, plaintiff filed a complaint against defendants for injuries which he sustained. A jury verdict was returned in favor of plaintiff and against defendants. The jury determined the damages to be $50,000 and attributed 99% of the fault to plaintiff, which reduced plaintiff's award to $500. Plaintiff appeals, contending that: (1) the trial court erred in denying his motion for judgment notwithstanding the verdict; (2) the trial court erred in permitting a non-IPI instruction to be read to the jury; and, (3) the trial court erred in denying his motion for a new trial. We affirm.

Plaintiff first contends that the trial court should have entered judgment notwithstanding the verdict, with no reduction for comparative negligence. He correctly recites the applicable standard that judgments notwithstanding the verdict ought to be entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 511, 229 N.E.2d 504.) However, plaintiff's application of the standard is fundamentally flawed.

First, plaintiff attempts an analogy between this case and Pedrick. In Pedrick, the plaintiff's testimony concerned whether railroad crossing signals were flashing properly. Significantly, the plaintiff's testimony, which was comparatively ambiguous to that of the defendant's, went to the issue of causation.

In this case, plaintiff points to defendant Kukla's testimony concerning his reason for having used the road on the day of the collision and the fact that defendant testified that he used the road with great regularity and yet had failed to notice the signs posting the road as private. He reasons that since the defendant's testimony on these issues was equivocal and ambiguous, like in Pedrick, the trial court should have entered a judgment notwithstanding the verdict. We disagree.

Initially we note that the only testimony that was contradictory was that which concerned defendant's reason for using the road. Additionally, the fact that defendant Kukla testified that he had often used the road without giving attention to the posted signs does not render his testimony on that issue ambiguous. Moreover, the testimony targeted by plaintiff in support of his motion was neither relevant nor probative on the issue of defendants' negligence.

Unlike the testimony in Pedrick, the testimony to which plaintiff here points bears no relationship to any ultimate fact or issue in the case. Clearly this testimony does not compare, either in character or calibre, to the questionable testimony in Pedrick. Consequently, even if we were to agree with plaintiff's characterization that the testimony was ambiguous, such a finding carries no weight to shift the balance of the evidence in plaintiff's favor. Facts unrelated to essential elements of plaintiff's cause are immaterial no matter how sharply controverted, and cannot support a motion for judgment notwithstanding the verdict.

Also, in his analogy, plaintiff compares defendant Kukla's testimony concerning the reasons and frequency with which he used the road, with his (plaintiff's) "unequivocal and unambiguous" testimony concerning the events which immediately preceded the collision.

Plaintiff here attempts to compare apples and oranges. Defendants' motives for using the road may have been contradictory; however, this nonessential testimony cannot logically be compared to testimony relating to ultimate facts. In Pedrick, the holding did not simply rest on the fact that some testimony was ambiguous and equivocal; the relevant and comparative testimony related to the same essential facts.

Here, each party's version of the facts as to how the collision occurred, while different, was clear and consistent. Those differences merely created questions of fact and issues of credibility for the jury, not a mandate for judgment notwithstanding the verdict. Moreover, where, as here, the evidence demonstrates a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence may be decisive of the outcome, it is error to enter a judgment notwithstanding the verdict. (Lee v. Grand Trunk Western R. Co. (1986), 143 Ill.App.3d 500, 509, 97 Ill.Dec. 491, 492 N.E.2d 1364; Wright v. Yellow Cab Co. (1983), 116 Ill.App.3d 242, 71 Ill.Dec. 946, 451 N.E.2d 1313.) Based on all of the evidence presented, we do not find any to be so compelling as to support a verdict in plaintiff's favor. We hold that the denial of plaintiff's motion was proper.

Plaintiff next contends that the non-IPI jury instruction, was erroneously given. He claims that the instruction overemphasized the nature of the road and prejudiced his case. Further, he argues that the instruction was not supported by evidence. Defendant has responded that the instruction was a necessary clarification to the jury on how to treat the issue of the private road.

The questionable instruction provided:

"The fact that the Defendant was operating his vehicle on a private roadway should not be a factor for you to consider in deciding the issues presented in this case."

The trial court has the discretion to determine which instruction shall be given and the exercise of such discretion will not be disturbed on review unless it has been clearly abused. (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill.App.3d 835, 844, 78 Ill.Dec. 526, 462 N.E.2d 645; Clarkson v. Wright (1984), 121 Ill.App.3d 230, 76 Ill.Dec. 668, 459 N.E.2d 305, rev'd on other grounds, (1985), 108 Ill.2d 129, 90 Ill.Dec. 950, 483 N.E.2d 268.) The standard for determining the adequacy of jury instructions is whether they were sufficiently clear to avoid misleading the jury, while at the same time, fairly and correctly stating the law. (Nolan v. Elliott (1989), 179 Ill.App.3d 1077, 1085, 129 Ill.Dec. 288, 535 N.E.2d 1053; Black v. Peoria Marine Construction Co. (1987), 160 Ill.App.3d 357, 112 Ill.Dec. 208, 513 N.E.2d 622.) However, care should be taken to...