Wills v. Paul, Gen. No. 10266
|24 Ill.App.2d 417,164 N.E.2d 631
|18 February 1960
|Gen. No. 10266
|Everett WILLS, Plaintiff-Appellant, v. Albert PAUL, Defendant-Appellee.
|United States Appellate Court of Illinois
Paul C. Verticchio, Alvin G. Whitehouse, Gillespie, for appellant.
Rinaker, Hebron & O'Connell, Carlinville, for appellee.
This is an action for damages resulting from personal injuries sustained by plaintiff while working as a farmhand for the defendant.
In the complaint it is alleged that on December 15, 1955, plaintiff, at the request of and as an employee of the defendant, was operating a corn picker; that while plaintiff was removing a corn stalk which had become lodged in said corn picker his right hand was injured; that said injury was due solely to the negligence of defendant in that he directed and ordered plaintiff to operate a corn picker which he knew had a defective gear and because of said defective gear the corn stalk became lodged in the corn picker; that as the proximate result of defendant's negligence plaintiff sustained serious and permanent injuries; and that at the time of the occurrence plaintiff was in the exercise of due care for his own safety. Defendant's answer consisted of a general denial of the complaint allegations. A trial by jury resulted in a verdict for plaintiff assessing his damages at $10,000. The trial court allowed defendant's post-trial motion and entered judgment notwithstanding the verdict in his favor from which plaintiff appealed.
There is no substantial conflict in the evidence, which discloses that at the time of his injury plaintiff was 44 years of age; that he had worked as a farm laborer all his life; that he had worked for defendant for about 12 years and was well acquainted with the operation of farm machinery including corn pickers; that while the program of farm operation was prescribed by defendant, the crops were planted and harvested by the plaintiff; that plaintiff also looked after the farm machinery and if it needed repair he reported such fact to the defendant; that the corn picker in which plaintiff was injured was a used machine purchased in 1954; that it was equipped with a power take-off device which enables the operator to stop the picker by shutting off all power from the tractor; that although requiring repairs on numerous occasions, it was used by plaintiff to pick all but 2 1/2 acres of the 1955 corn crop of about 55 acres; and that a new gear for the machine had been ordered but had not arrived at the time of the accident.
Plaintiff testified that he was the only one who operated the picker in 1955; that about December 12 of that year, he told defendant that there was a part on the picker which was wearing pretty badly; that defendant said: 'If we could have the shaft fixed and make it do', he would like to finish up the corn picking; that at the time of the accident he was operating the picker in the field; that he noticed that a brace on the gear box was 'knocking around' and making a noise; that he shut off the power and went back and looked at it but could not detect what was going on without putting the power take-off on and letting the machine idle; that after putting the power take-off on and with the picker running, he watched for awhile and noticed that one of the shafts was cutting the brass fitting around the gear box; that a corn stalk coming through the machine blocked his view; that he pulled off his glove and tried to knock the stock out of his way; and that as he did so his hand became caught in the rollers of the machine. Plaintiff further testified that previous to the accident he had operated corn pickers with power take-off and that before removing the corn stalk the proper thing to do would be to shut off the power.
The sole question presented by this appeal is whether the trial court erred in sustaining the defendant's motion for judgment notwithstanding the verdict. A motion for judgment notwithstanding the verdict preserves for review a question of law as to whether when all the evidence is considered together with all reasonable inferences legitimately arising therefrom in its aspect most favorable to the plaintiff, there is a total failure of evidence to prove an essential element of plaintiff's case. Heideman v. Kelsey, 414 Ill. 453, 111 N.E.2d 538; Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855; LeMay v. Jenkins, 6 Ill.App.2d 57, 126 N.E.2d 524.
In passing upon such motion, the trial court is governed by the same rule as that applicable to motions for a directed verdict and may not weigh the evidence or determine where its preponderance lies but is concerned only with determining whether there is any evidence fairly tending to prove the cause of action alleged.
Plaintiff is correct in asserting that the issues of negligence and due care are ordinarily questions of fact for the jury. However, if upon the undisputed facts, reasonable men exercising fair and honest judgment would be compelled to conclude that such facts failed to establish due care on the part of plaintiff or negligence on the part of the defendant, then these issues become questions of law. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162; Sims v. Chicago Transit Authority, 4 Ill.2d 60, 122 N.E.2d 221.
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