dissenting:
I am unable to agree with the majority of this Court that the granting of the judgment n.o.v. should be reversed. I believe that the judgment n.o.v. was properly granted under the dictates of Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, because the evidence so overwhelmingly favored the defendant Mrs. Finley, that- no contrary verdict based on that evidence could ever stand.
For almost a block traffic heading west on North Avenue was stopped because of a traffic control. Dr. Walsh, the plaintiff, testified that prior to the accident his car was standing for one or two minutes at a point three or four feet behind a car which was stopped. He looked through his rear window, but he saw nothing before his car was struck from behind by Mrs. Finley’s car. He further testified that at the time of impact he had his foot on the brake. Mrs. Finley testified that she had stopped at a point two or three feet behind Walsh’s car and that about two or three seconds after she stopped, her car was struck from behind and propelled into Walsh’s car even though she had her foot on the brake. Mrs. Kelly testified that she stopped her car at a point three or four feet behind Mrs. Finley’s car which was not then moving. Her car remained standing for three or four seconds, during which time none of the cars in front of her moved. Her motor then died, and when she turned the key to start the car, it lurched foreward and struck Mrs. Finley’s car. She explained that her car just “jumped” into Mrs. Finley’s car. She further testified that she heard no impact or crash prior to the time that she struck Mrs. Finley’s car.
In order for the plaintiff, Dr. Walsh, to recover from the defendant, Mrs. Finley, he must prove by a preponderance of the direct and circumstantial evidence that she operated her vehicle negligently. Mrs. Finley testified that prior to the accident her car had come to a full stop, and that after her car was struck from behind, it was pushed into Walsh’s car. Mrs. Kelly corroborated Mrs. Finley’s testimony that the Finley car was stopped prior to the accident. This direct and positive evidence is uncontradicted. Plaintiff argues that this testimony was refuted (1) by the fact that Walsh felt and heard two crashes and (2) by the fact that Mrs. Kelly’s car sustained relatively minor damage in comparison to the damage sustained by the other cars. Direct and positive testimony may be refuted by circumstantial evidence, (Lobravico v. Checker Taxi Co., 84 Ill.App.2d 20, 228 N.E.2d 198), but the circumstantial evidence must be of such a nature and so related that the refutation of the direct and positive testimony is the only reasonable conclusion to be drawn from the circumstantial evidence. (See Anderson v. Chicago R. E. & P. Ry. Co., 243 Ill.App. 337, 18 I.L.P. Evidence § 342.) It is reasonable to infer from the circumstantial evidence two inconsistent conclusions, i.e., (1) that the plaintiffs theory is correct or (2) that the defendant’s corroborated testimony is true. A finding of negligence, however, cannot be based upon guess, conjecture, or speculation. (Huff v. Illinois Central R.R. Co., 362 Ill. 95, 199 N.E. 116.) Consequently, I believe that the circumstantial evidence was insufficient to refute the direct and positive testimony of Mrs. Finley and Mrs. Kelly. The evidence viewed most favorably to the plaintiff, so overwhelmingly favors Mrs. Finley that no contrary verdict based on the evidence could ever stand.