delivered the opinion of the court:
Appellant takes the position here that the matters involved in this appeal are res judicata under and by a former judgment of the Appellate Court. It appears from the record that the case was tried three times in the circuit court of Cook county. On the first trial the verdict was not guilty. On the second trial there was a verdict for the appellee for $3500. On appeal the Appellate Court for the First District reversed and remanded the cause for a new trial. The record of the Appellate Court on the first appeal is not before us, and we have no definite means of knowing what the judgment was. In the absence of the record we will presume that the circuit court proceeded in accordance with the judgment and remanding order of the Appellate Court, and in looking to the record of the circuit court we find the trial from which this appeal was prosecuted was general and upon the merits.
Appellant cites a number of cases wherein it is held that if a cause is remanded with special directions to the lower court as to the judgment to be there rendered, and that court proceeds and renders judgment according to such directions, then, on another appeal to the Appellate Court, the matters it has passed upon in the former appeal are res judicata. Such was the holding in Henning v. Eldridge, 146 Ill. 305, and other cases cited by appellant. But the case of Henning v. Eldridge, supra, states the correct rule to be, that when the cause is remanded by the Appellate Court generally, the judgment of the Appellate Court is not a final judgment and is not res judicata. This latter rule has been many times announced, and among the more recent cases is that of Friedman v. Lesher, 198 Ill. 21. In the absence of the record showing the contrary we will also presume that the Appellate Court looked to its former judgment and directly determined that its former judgment was not res judicata of the matters now presented.
The error assigned upon the judgment of the Appellate Court is, that it erred in affirming the judgment of the court below. No question is raised as to the admission or exclusion of evidence or the giving op refusing of the general instructions. The only question for the court to determine is, whether the trial court erred in refusing the peremptory instruction offered by the defendant at the close of all the evidence. We have held repeatedly that in such case there is before this court the single question, was there in all the evidence testimony fairly tending to support the plaintiff’s cause of action? We are not authorized to make any inquiry into the preponderance of the weight of the evidence. That was the function of the jury and the Appellate Court. Our inquiry must be whether there is any evidence in the record which fairly tends to show that defendant’s servants were negligent and that the plaintiff’s intestate was in the exercise of due care, and that the injury was due to appellant’s negligence. We must take all the evidence in the record that makes for the plaintiff and exclude all that denies or contradicts it, because a motion to direct a verdict for the defendant admits, for the purposes of the motion, the truth of the testimony which supports the plaintiff’s cause. Then, in order to hold that there was error in refusing the peremptory instruction, we must find that reasonable minds would not reach different conclusions on this evidence. Chicago City Railway Co. v. Martensen, 198 Ill. 511; Illinois Central Railroad Co. v. Heisner, 192 id. 571; Offutt v. World’s Columbian Exposition, 175 id. 472.
The plaintiff introduced evidence tending to show that the wagon of defendant crossed from the north to the south side of the boulevard as though about to enter Page avenue, and then suddenly turned to the west; that the plaintiff’s intestate was confused by the sudden turns, and, although evidently making every effort to avoid the wagon, was struck. We believe that if this were true, reasonable minds might reach different conclusions as to whether such acts on the part of the defendant’s servants were negligent and whether plaintiff’s intestate was in the exercise of due care. We can not say that, as a matter of law, it would not be negligent for one to drive his horses at a trot from the north side to the south side of the street in a manner calculated to lead other travelers on the street to believe he intended to leave it, and then suddenly turn to the west, along and in the same street. In making this sudden turn he was on the part of the boulevard which was to his left, and was directly in the way of those coming from the opposite direction who were on the part of the boulevard which was to their right. We do not hold that the failure of the defendant to keep on the right side of the boulevard was negligence per se, but that it was a circumstance which tended to prove negligence. At all events, we think that reasonable minds might differ as to whether, under all the circumstances as shown by the evidence, the appellant was negligent or not and whether the plaintiff’s intestate was using due care and was injured by appellant’s negligence. We would usurp the functions of the jury and the Appellate Court if we were to go further into the record to satisfy ourselves on the question of preponderance of the evidence.
We find no reversible error in the judgment of the Appellate Court, and that judgment is accordingly affirmed.
Judgment affirmed.