This dissent is presented in the light of policy expressed in related context by the opinion in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, concerning verdicts which are “not factually sustainable.” It is frequently said that a reviewing court must set aside a verdict which is clearly against the manifest weight of the evidence. This may result where a state of facts is established which makes the conclusion of the jury inconsistent with the evidence. Acosta v. Gill, 48 Ill App2d 186, 198 NE2d 741. In Turner v. Seyfert, 44 Ill App2d 281, 194 NE2d 529, a verdict for the defendant was reversed as against the manifest weight of the evidence, primarily upon physical evidence establishing speed through skid marks. In May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394, the court stated that the reasonableness of the testimony of the plaintiff must be considered and his testimony that the rope was new was examined in the light of the apparent condition of the rope, and order for a new trial was affirmed. In Carter v. Winter, 32 Ill2d 275, 204 NE2d 755, the Supreme Court stated that the plaintiff’s conduct should be considered in the light of his own testimony-concerning speed, which the Court deemed “incredible,” as well as the testimony of the other witnesses. In criminal cases it has been stated in another way — a conviction may be set aside on review where the judgment rests on doubtful, improbable or clearly insufficient evidence. People v. Hightower, 20 Ill2d 361, 169 NE2d 787; People v. Turner, 82 Ill App2d 10, 226 NE2d 667; People v. Owens, 73 Ill App2d 108, 219 NE2d 733.
The opinion does not investigate factors present in the record which so contradict plaintiff’s evidence and create such a high degree of improbability that his theory should be deemed not credible to reasonable men.
While the majority note that the testimony of the defendant, Tabaka, is corroborated by that of the witness, Phillips, a stranger to all parties mediately and immediately interested in the event, they conclude that the jury might test his credibility, and presumably disregard his testimony, in the light of the fact that both the plaintiff and Tabaka testified that they had no recollection of seeing Phillips on the “dock.” Whether the term “dock” in such testimony was employed literally and strictly to describing the loading platform, or more broadly to the entire loading area, this conclusion is not reasonable in the light of uncontradicted evidence that Phillips was present. Francis Lynn, traffic supervisor for Central Waxed Paper Co., testified that almost immediately after the event he talked with Phillips concerning the occurrence, made notes of what Phillips said, and Lynn’s memorandum listing the names and addresses of both Phillips and Tabaka is in evidence as an Exhibit. Under such circumstances it is not reasonable to conclude that the jury would be entitled to disregard otherwise unimpeached testimony for the reason stated in the opinion.
We suggest that plaintiff’s description of the event, examined in the light of the physical facts in evidence, contradicts his testimony to such degree that it may properly be deemed improbable. Plaintiff gave no specific description of the pallet, but one Merkel, a receiving clerk on the date in issue, described the pallets used on the dock and referred to a photograph in evidence, stating that such pallets were about 6 inches high, i. e., the load bearing surface of the pallet rested on wooden pieces which raised such surface about 6 inches above the floor. The pallet was described as being about 45x45 inches, or slightly less than 4 square feet.
The following are taken from plaintiff’s testimony: Defendant’s truck was backed up to the southerly edge of the westernmost loading dock. A platform, which formed a part of the dock and could be raised or lowered to the level of the truck bed, had a north-south dimension of 8 feet and an east-west dimension of 5 feet. From the west edge of such platform, the dock extended west about 6 feet. A photograph, in evidence as plaintiff’s Exhibit 8, scaled to stated measurements, shows steps about 3 feet wide from the dock to the floor of the area located at the west wall of the structure. East from the steps a rail extends along the edge of the dock an apparent 2 feet or so to a point a foot or a foot and one-half west of the west edge of the platform first described.
Plaintiff described his acts and positions: He placed the pallet so that its southerly edge was about 2 feet north of the south edge of the platform, the 4 feet square pallet being centered on the 5 foot east-west dimension. Tabaka rolled out the first drum described as 2 feet in diameter and 4 feet tall, weighing some 400 pounds. This was placed on the northeast corner of the pallet. Tabaka says that plaintiff helped roll this drum upon the pallet. Plaintiff says that he just stood there.
Plaintiff describes himself as standing at the northwest corner of the pallet. When Tabaka moved the first drum onto the northeast corner of the pallet, he was then approximately 6 feet from the edge of the dock. Upon cross-examination he states that when Tabaka returned with the second drum, “I was still standing there.” Upon this version by plaintiff he would be 6 feet north of the edge of the platform and about 4 feet north of where the drum would first come into contact with the 6-inch elevation of the load surface of the pallet. Upon this description we can find no vector or flow of force by which the drum at issue could be propelled onto the pallet or fall from it so that it would strike plaintiff and cause the plaintiff and the drum to fall to the south of the platform and west of the truck.
At another point on direct examination, he stated that he was standing a foot or two north of the edge of the dock, i. e., the same distance from the edge as was the pallet, and that he stood two feet west of the pallet. He testified that as Tabaka rolled the barrel it would first hit the edge of the pallet, and that he thinks that Tabaka had one end of the barrel on the pallet which then fell southwest. It is not claimed that the pallet was moved or shifted by the impact of the rolled drum and it would seem that the pallet was, in fact, strongly anchored by the weight of the first drum. It is not claimed that the drum was propelled over and across the pallet with its 6-inch elevation above the floor so as to strike the plaintiff. From plaintiff’s position 2 feet west of the pallet and 2 feet north of the edge of the dock, he would appear to be north of the rail of the platform. Such rail was not, so far as the testimony shows, a factor connected with the fall at issue. Under plaintiff’s testimony we can find no valid physical reconstruction of the fall of the drum which would strike the plaintiff causing him to fall to the southwest beneath the drum. The record is replete with plaintiff’s statements which are incomprehensible on review because he pointed out on the photograph that he stood here or there. Thus, it is necessary to review this matter on physical facts and distance relations actually described in evidence.
From a scrutiny of the physical factors shown by plaintiff’s testimony, it is reasonable to conclude that there is overwhelming contradiction of his testimony concerning the acts alleged to create liability. These contradictions are in addition to the elements impeaching the testimony of plaintiff given passing reference in the opinion. Such contradictions should be considered in the light of the testimony of the other occurrence witnesses, Tabaka and Phillips. Carter v. Winter, 32 Ill2d 275, 204 NE2d 755.
For the reasons stated, the verdict is deemed contrary to the manifest weight of the evidence. Since the record does not conclusively demonstrate that no new or different evidence would not be available at a new trial, the cause should be reversed and remanded.