dissenting:
This case should be reversed and remanded because of a single but monumental error. The trial court directed a verdict against the defendant, Foresman, on the issue of his negligence in the face of credible evidence that Foresman was not negligent. This is not to say that a jury verdict against Foresman would not be sustainable. Indeed it would. As there was evidence on both sides of Foresman’s negligence, a jury verdict would have been sustainable either way. However, it was manifestly not the trial court’s prerogative to take this matter away from the jury.
The Pedrick test is well known. Often misquoted, it is more often mistakenly interpreted. An explicit difference exists between the criterion necessary to direct a verdict and that sustaining a motion for a new trial. In the latter instance, the court will weigh the evidence and set aside the verdict where it is contrary to the manifest weight of the evidence. But where a motion for a directed verdict is presented, a more conclusive evidentiary standard is required than that which would sanction granting a motion for a new trial. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, quoting Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509-10, and Jardine v. Rubloff (1978), 73 Ill. 2d 31, 35-37.) My colleagues, in paying lip service to the Pedrick rule, obscure this distinction when they conclude that directing a verdict on the issue of Foresman’s liability was correct. I dissent.
The collision happened west of Princeton on a two-lane highway. The Foresman vehicle was westbound; the Hopper vehicle eastbound. The road’s topography is unusual, deceptive, and in local patois known as “roller coaster hill.” Its grade consists of two camel-backed hills, such that vehicles travelling in opposite directions cannot see each other until they reach the crest of the second hill. It is exactly at that locus where the accident creating this litigation occurred.
In addition to the testimony the majority notes, Foresman testified he did not know where the cars, in relation to the parties’ respective highway lanes, collided. He admitted at one point he was partially in the wrong lane, but he stated he had corrected his lane usage five to 10 seconds prior to the impact and before ascending the second hill. Also, he testified that prior to the crash he saw headlights which “* * * seemed to be coming in my path 9 9 Finally, he said he thought he was travelling 55 miles per hour. David Rumley, an eyewitness, declared Foresman’s vehicle was in the wrong lane and moving at an excessive rate of speed.
In reconstructing the accident scene, Deputy Muratori said the Hopper vehicle was three feet over the middle of the road, whereas Foresman’s car was six inches over. The sole survivor of the Hopper vehicle could not testify due to retrograde amnesia.
The physical evidence does not “clearly indicate” that Foresman’s vehicle was in the wrong lane driving 70 miles per hour at the time of the crash. The evidence adduced was conflicting. Deputy Muratori’s investigation indicated, from the position of the automobiles, that Hopper’s vehicle may well have been in the wrong lane when the crash occurred. Rumley’s testimony was directly contradicted by Foresman. Newlin’s testimony was disputed by Foresman’s depiction of the events immediately preceding the impact, and might have been neutralized in a juror’s mind by Newlin’s own inconsistent statements in other areas of his testimony. Defendant said his car might have been in the westbound or eastbound lane at the time of the impact. Although the majority indicates otherwise, defendant did not have to prove where his car was located.
In deciding whether to direct a verdict, the task is not merely to tot up the evidence on each side to see which side has more. This is nothing more than weighing the evidence. That is what the trial judge and my colleagues have done. Such is an improper standard for a directed verdict. The test, rather, is whether a contrary verdict could ever stand. Accordingly, I would reverse and remand.