{
  "id": 2962218,
  "name": "Mary Lou Potter, Plaintiff-Appellant, v. Susan Edgar, Defendant-Appellee",
  "name_abbreviation": "Potter v. Edgar",
  "decision_date": "1975-11-06",
  "docket_number": "No. 60647",
  "first_page": "33",
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    "judges": [],
    "parties": [
      "Mary Lou Potter, Plaintiff-Appellant, v. Susan Edgar, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE MEJDA\ndelivered the opinion of the court:\nPlaintiff, Maiy Lou Potter, filed an action against Susan Edgar for personal injuries. At the close of plaintiff\u2019s case, before a jury, the trial court directed a verdict and entered judgment for defendant. Plaintiff appeals.\nInitially, we denied a motion of defendant to dismiss the appeal. After briefs were filed, the motion was renewed, then taken with the case. Upon further consideration, we adhere to our previous denial of the motion. The only issue on appeal is whether the trial court properly directed a verdict for defendant.\nAt the trial, plaintiff testified that on March 24, 1970, at about 10 a.m., she was a passenger in the front seat of an automobile driven by Mrs. Lillian Legault. Mrs. Legault was driving west on Granville Avenue looking for a parking space when she noticed one along the south curb. She drove a few feet past the space and made a left turn into an all\u00e9y, then stopped there for a few seconds while she and plaintiff debated if they should park behind the apartment building at the southwest comer of the alley or on the south side of Granville Avenue. Plaintiff testified that while they were in the alley the car was hit in the right rear; that prior to the impact she did not see the other vehicle; that after they were hit she turned and saw the other car moving across the street headed north; and that she thought it was going 25 to 30 miles an hour. She testified that there was a Volkswagen on the south side of Granville, just west of the alley; that just behind it was a normal size car; and that Mrs. Legault\u2019s automobile extended out into the street about 6 inches. She stated that the right rear bumper of Mrs. Legault\u2019s car was hit, causing a very small dent; that there was not much damage to Mrs. Legault\u2019s car, and that after the impact it was still parked where it had been hit.\nOn cross-examination plaintiff said that Mrs. Legault did not put the car in reverse while they were talking in the alley; she did not begin backing, and the car remained motionless. The car parked behind the Volkswagen was 2 feet or a foot and a half wider than the Volkswagen, so that Mrs. Legault\u2019s car \u201cwas about two feet inside the outside edge\u201d of the second parked car; that the car was not moving, and after the accident was still parked 6 inches beyond the side of the Volkswagen where it remained from the time it was hit; it was never moved from that spot.\nMrs. Lillian Legault substantially corroborated the testimony of plaintiff; she further stated that she was driving west on Granville Avenue looking for a parking space and saw one on the south side of the street; that she could see approximately 2 or 3 blocks down the street and did not observe any cars coming toward her from the west; she s&w cars parked on the south side, but saw a parking space and pulled into the alley; there was a Volkswagen about a car length from the alley, and a regular car behind it on the south side of the street. She said that while parked in the alley she turned around in her seat to see if any traffic was coming; she first looked east and saw no traffic, then looked west; she shifted the car into reverse and turned around to start backing when she felt a jar on the car. The car had not started moving at any time prior to the impact; the end of her car was about 4 inches past the end of the Volkswagen; and to the best of her knowledge her car was \"still inside the left side of the big car that was in back of the Volkswagen.\u201d Mrs. Legault further testified that she did not see defendant\u2019s vehicle at any time before the impact; that the right rear bumper of her car came in contact with defendant\u2019s right rear fender; there was a sudden jarring motion and plaintiff had a sudden violent motion toward the front and back, \u201ca rocking motion.\u201d She said she saw defendant\u2019s car swerve to the left and strike the building on the north side of the street; and after the impact her car was still in the alley where she had stopped.\nOn cross-examination, Mrs. Legault said she looked east and looked west, then shifted into reverse, started backing and \u201cgot struck.\u201d She had just shifted into reverse before she started to back and had not put the car into motion and her foot was still on the brake. She said that in a previous written statement given to her insurance agent she had stated that as she pulled into the alley she looked to the west and then to the east, then turned around in her seat and looked west again; that a car she \u201cnever saw before just barely tipped my bumper and I stopped\u201d; that she stayed right where she was; and the other car swerved to the left and hit a building. She said the statement was true then and it was true at the time of the trial.\nPlaintiff stated that defendant\u2019s deposition testimony \u201cwhich was read into the record, was that she observed the vehicle driven by Mrs. Legault for 2 car lengths before the collision occurred, that the first time she saw the car [plaintiff\u2019s] was on the street and that she [defendant] was driving up to 25 m.p.h. before this collision.\u201d The record does not disclose that defendant\u2019s deposition was read into the record. However, during the argument on defendant\u2019s motion for a directed verdict, defense counsel commented on the statements in defendant\u2019s deposition to the effect that \u201cdefendant had seen the plaintiff\u2019s vehicle two car lengths away when the tail end was in the street\u201d; that defendant was \u201ctraveling at a rate of twenty-five miles an hour before the collision\u201d; and that \u201cthe defendant applied the brakes and swerved to the left to avoid impact.\u201d The trial court, in commenting on the deposition, said to plaintiff\u2019s counsel, \u201cthe so-called admissions from the deposition and those \u2018admissions\u2019 in my opinion do not show any negligence on her [defendant\u2019s] part.\u201d\nBoth parties rely upon Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, where the cotut said:\n\u201cIn our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d\nPlaintiff contends that in light of Pedrick the trial court erred in directing a verdict for defendant because the issue of plaintiff\u2019s freedom from contributory negligence was a question of fact to be determined by the jury. Plaintiff also contends that the trial court erred in \u201cfinding that plaintiff\u2019s driver was the sole, approximate [sic] cause of the accident.\u201d Although the trial coiut, during the argument on defendant\u2019s motion for a directed verdict, stated that \u201cthe plaintiff has the burden even though she was a passenger, in showing she was free of contributory negligence in this situation\u201d and further stated that \u201cthe sole cause of the accident was the driver of the plaintiff\u2019s vehicle, the one in which she was riding, she is, in my opinion, the sole cause of the accident,\u201d the trial court based its decision on its belief that \u201cthere is no proof whatsoever of any negligence on the part of the defendant.\u201d Our opinion will be limited to the question of whether plaintiff proved negligence on the part of defendant.\nLiability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendant\u2019s acts caused the injury. (Driscoll v. Rasmussen Corp. (1966), 35 Ill.2d 74, 219 N.E.2d 483; Guttman v. Salvaggio (1969), 117 Ill.App.2d 375, 254 N.E.2d 637.) It is clear that no liability exists unless defendant\u2019s alleged negligence is the legal cause of plaintiff\u2019s injury. (Truelsen v. Levin (1975), 24 Ill. App.3d 733, 321 N.E.2d 528; Hagerman v. National Food Stores, Inc. (1972), 5 Ill.App.3d 439, 283 N.E.2d 321.) Failing to establish this element of proximate cause, a plaintiff has not sustained her burden of mating a prima facie case in negligence, and it is proper to direct a verdict for defendant. Truelsen v. Levin.\nIn the instant case, plaintiff failed to introduce any evidence whatsoever of negligence on the part of defendant. Plaintiff was a passenger in a vehicle operated by Mrs. Lillian Legault. They were driving west on Granville Avenue, Chicago, when they saw a parting space on the south side of the street and made a left turn into an alley to reverse and occupy the parting space. Plaintiff testified that Mrs. Legault shifted to reverse gear and was preparing to back up, when the accident occurred. Both plaintiff and Mrs. Legault said the car was not moving backwards when it was struck by defendant\u2019s vehicle. Plaintiff testified that a Volkswagen was parked on the south side of Granville Avenue, just west of the alley; that behind it was a normal size car; and that Mrs. Legault\u2019s automobile extended out into the street about 6 inches. She said the car parked behind the Volkswagen was 2 feet or a foot and a half wider than the Volkswagen so that Mrs. Legault\u2019s car was about 2 feet inside the left fender of the second car. Mrs. Legault\u2019s car was not moving, and was still stopped 6 inches beyond the side of the Volkswagen after the accident.\nMrs. Legault testified that her car had not started moving at any time prior to the impact; that it was about 4 inches past the end of the Volkswagen; and that to the best of her knowledge it was still \u201cinside the left side of the big car that was in back of the Volkswagen.\u201d On the other hand, in a statement to her insurance agent, Mrs. Legault said, \u201cA car I never saw before just barely tipped my bumper and I stopped.\u201d She stated that this statement was true when given to her insurance agent and was true at the time of trial. Defendant stated in her alleged deposition that she saw \u201cthe plaintiff7s vehicle two car lengths away when the tail end was in the street.\u201d\nBoth plaintiff and Mrs. Legault stated that they did not see defendant\u2019s vehicle at any time before the accident. If we accept their testimony that their automobile was stopped with the rear end approximately a foot and a half south of the regular size car behind the Volkswagen, it would have been necessary for defendant to make a sharp right turn after passing the car parked behind the Volkswagen in order to hit Mrs. Legault\u2019s right rear bumper. The trial court was of the opinion that Mrs. Legault\u2019s car was not stopped because \u201cobviously the defendant in driving the vehicle in that lane would have struck the car immediately behind the Volkswagen.\u201d Since there is no testimony in the record that defendant made a right turn or hit the Volkswagen or the other car, there is no evidence of defendant\u2019s negligence. Plaintiff did not sustain her burden of making a prima facie case of negligence. Truelsen v. Levin.\nOn the other hand, the trial court was of the opinion that Mrs. Legault\u2019s car was moving; and that \u201cthe accident could not have happened if it had not been moving.\u201d Tins conclusion is in accordance with Mrs. Legault\u2019s other version that she brought her car to a stop after the impact and the alleged deposition of defendant that the tail end of Mrs. Legault\u2019s car was in the street. The trial court implied that defendant could not have been negligent if Mrs. Legault backed out of the alley, saying:\n\u201cShe [defendant] had a right to travel in the eastbound lane. And when she was traveling, she had the right to assume that somebody would not be coming out of that alley or at least to yield the right of way. She had the right to assume that certainly no one would back out of the alley under the circumstances, and therefore I just don\u2019t think you have a case.\u201d\nSee section 11 \u2014 1205 of the Motor Vehicles Act (Ill. Rev, Stat. 1971, ch. 95%, par. 11 \u2014 1205).\nFrom the record, it is apparent plaintiff had not sustained her burden of making a prima facie case of negligence, and it was therefore proper to direct the verdict for defendant. Further, the record indicates that the trial court reviewed all the evidence in its aspect most favorable to plaintiff and concluded that it so overwhelmingly favored defendant that no contrary verdict based on the evidence could ever stand. The court did not err in directing a judgment for defendant. Pedrick v. Peoria & Eastern R. R. Co.; Truelsen v. Levin.\nAccordingly, defendant\u2019s motion to dismiss the appeal which was taken with the case is denied and the judgment of the circuit court of Cook County directing a verdict in favor of defendant is affirmed.\nMotion denied; judgment affirmed.\nMcGLOON, P. J\u201e and DEMPSEY, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE MEJDA"
      }
    ],
    "attorneys": [
      "Arthur S. Gomberg and Sheldon S. Gomberg, both of Chicago (Samuel Nineberg, of counsel), for appellant.",
      "Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (John J. Corbett, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "Mary Lou Potter, Plaintiff-Appellant, v. Susan Edgar, Defendant-Appellee.\n(No. 60647;\nFirst District (3rd Division)\nNovember 6, 1975.\nArthur S. Gomberg and Sheldon S. Gomberg, both of Chicago (Samuel Nineberg, of counsel), for appellant.\nQuerrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (John J. Corbett, of counsel), for appellee."
  },
  "file_name": "0033-01",
  "first_page_order": 59,
  "last_page_order": 64
}