Michaels v. Midwest Emery Freight Lines, Inc.

LYONS, P. J.,

dissenting:

I cannot concur in the conclusion reached by the majority that the manner in which the injury was alleged to have occurred was inherently improbable. Only plaintiff and defendant, Snyder, testified as eyewitnesses to the incident, each as an interested party. The credibility and weight to be afforded their respective testimony were matters for the jury, not the court, to decide. Absent manifest error, it is not the province of this court to reweigh the evidence and substitute its judgment for that of a jury, even if it would have reached a contrary conclusion. Niman v. Pecatonica Livestock Exchange, 13 Ill App2d 144, 141 NE2d 327 (1957). After hearing all of the testimony, considering exhibits, and witnessing demeanor, the jury chose plaintiff’s account of the accident as the more truthful of the two. I do not consider that conclusion to be either erroneous or unwarranted.

Motions for a directed verdict and judgment notwithstanding the verdict present the single question of whether there was any evidence, taken with all its reasonable intendments most favorable to plaintiff, which tends to prove the material elements of the negligence action. Markus v. Lake County Ready-Mix Co., 6 Ill App2d 420, 128 NE2d 370 (1955). The court cannot attempt to reconcile away any conflict in the evidence. Cardona v. Toczydlowski, 35 Ill App2d 11, 180 NE2d 709 (1962). Here, when called for cross-examination under section 60 of the Civil Practice Act, defendant stated that plaintiff’s back was turned to his approaching vehicle. Defendant had an unobstructed view of plaintiff beneath the parked truck. He never sounded his horn. Defendant further remarked that plaintiff was about 20 feet east of the curb, approximately 45 feet south of the intersection. He testified that he stopped his truck upon a signal from a driver proceeding in the opposite direction. He, furthermore, conceded to having called his company to report an “accident.”

When called in his own behalf, defendant stated that plaintiff’s truck was 10 to 15 feet “directly” in front of him. Yet, he continued by saying that his vehicle was never in the same lane of traffic as plaintiff’s, never leaving that lane even as he crossed Lake Street. Taking cognizance of the width of Peoria Street (48 feet) and the dimensions of the vehicles here involved, this would mean that defendant crossed the intersection with one half of his truck in the path of oncoming traffic. The jury chose not to believe such a proposition. Assuming defendant crossed Lake Street in the proper lane, physical limitations dictate that he had to veer to his left into the oncoming lane to avoid a collision. This was exactly the theory offered by plaintiff. I do not feel that an injury being occasioned in this manner is inherently improbable.

Certainly, these attendant circumstances raised bona fide issues of fact, which when construed most favorably for plaintiff, would require the denial of motions for a directed verdict and judgment notwithstanding the verdict.