dissenting:
The majority apparently believes that pure accidents cannot occur, but the jury in this case did so believe. I do also and must respectfully dissent.
In reversing the lower court, this court has taken the case on appeal from the denial of the plaintiffs’ motion for judgment notwithstanding the verdict, and finds that the trial court should have directed the jury on the issue of liability.
The accident in this case has been elevated to the same level as human toes in plugs of chewing tobacco, colliding trains on the same track, and the proverbial mouse in cola bottles. I do not believe the accident in this case, unfortunate as it was, rises to that level. The lower court did not, nor did the jury — both of whom had the opportunity to hear and observe the evidence and the witnesses vouching for same.
While I agree with the law propounded by the majority, I disagree with its application to the facts. Res ipsa loquitur raises an inference of negligence on the defendants’ part. It enables a plaintiff to get past a motion for a directed verdict by establishing a prima facie case. The inference can be overcome by defendants’ proof. It is for the trier of fact to decide if this was done, not a reviewing court. Moore v. Atchison, Topeka, & Santa Fe Ry. Co. (1961), 28 Ill. App. 2d 340, 171 N.E.2d 393.
The majority states that these defendants failed to offer a satisfactory explanation of why the towed car swerved as it did. This is not the burden they face in a res ipsa allegation. Nor do they face a rebuttable presumption. They only have to rebut the inference of negligence. See E. Cleary & M. Graham, Illinois Evidence 64 (3d ed. 1979).
The majority say that defendants presented no evidence that addressed the question as to what caused the towed vehicle to swerve into the opposite traffic lane. I do not believe this is what constitutes the alleged negligence. This case hinges on whether defendants did all in their power before and during the transportation to keep the towed car from swerving or weaving.
The majority believes this accident was the product of negligence on Beck’s part. However, the evidence presented seems to show that defendant, Harley Beck, did all that he could to make and keep the car secure. The majority calls this “some slight adverse evidence” to the inference of negligence. They feel that the evidence was such that the case should not have gone to the jury. However, this was direct evidence on the question of negligence. Therefore, the case was properly sent to the jury and not directed on the question of liability.
The jury believed that the evidence presented rebutted the inference of negligence. It is not unreasonable to find, as the jury did, that this accident was simply that, an accident, a freak occurrence. Thus, viewing the evidence most favorably toward the defendants, does the evidence so overwhelmingly favor the plaintiffs that no contrary verdict may stand? I do not believe so.
I see nothing to suggest that the jury misinterpreted the instructions. The majority must therefore believe the verdict was unreasonable. However, the jury is to decide what is reasonable; we are not to substitute our judgment for theirs, even if we would have decided the case differently. (See Lynch v. Board of Education (1980), 82 Ill. 2d 415.) That is, of course, unless the majority is sub silentio imposing strict liability on towing vehicles whose tow cross over the center line without explanation.