delivered the opinion of the court.
Plaintiff recovered a judgment for $100,000 upon a verdict of a jury in the superior court of Cook county against defendant, in an action for damages for personal injuries sustained in a collision between his automobile and a bus, owned and operated by defendant. The jury also, in response to a special interrogatory submitted at defendant’s request, found that the bus had been operated in a wilful and wanton manner. The trial court overruled defendant’s motion for judgment notwithstanding the verdict and for a new trial, and the motion to require a remittitur and to vacate the special verdict.
■ On appeal from that judgment, this court, on a prior hearing, reversed the judgment of the trial court without remanding, and held that the trial court should have directed a verdict for defendant or have entered judgment for it, notwithstanding the verdict. Schneiderman v. Interstate Transit Lines, Inc.,
On appeal to the Supreme Court, the judgment of this court was reversed and the cause remanded to this court with directions “to consider any other questions not previously considered and to either affirm the judgment or reverse it and remand the cause for a new trial. ’ ’ The opinion of the Supreme Court is reported in
The facts involved in the accident, recited in the prior opinion of this court and in the opinion of the Supreme Court, will not, in the interest of brevity, be restated. The Supreme Court having determined that there was evidence sufficient to go to the jury respecting the liability of the defendant, there remains for this court to determine the question whether the verdict and judgment of the court are against the manifest weight of the evidence. The determination of such a question in any case involves a grave responsibility, which we are in duty bound to squarely meet and carefully discharge. Especially so, in view of the construction which the Supreme Court in its opinion has placed on much of the evidence. in this record. v
In approaching the question whether the verdict and judgment are against the manifest weight of the evidence, we must apply the principle so many times stated and repeated in Norkevich v. Atchison, T. & S. F. Ry. Co.,
“ ‘ There are many things which a jury observes on the trial in such case that do not appear from the printed record — the appearance of the respective witnesses, their manner of testifying and a great many other circumstances. They are in a much better position in such case to determine the truth of the matter in controversy than a court of review. ’ . . . Under the law we cannot disturb the verdict of the jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable.” (Italics ours.)
In Mirich v. T. J. Forschner Contracting Co.,
‘‘ One of the recognized benefits of trial by jury is that the jury sees and hears the witnesses, which gives them superior advantage over a reviewing court in determining the credibility of the witnesses and the weight and credit that should be given their testimony.’'’
As was aptly said by our Supreme Court in People v. Hanisch,
“The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury. ’ ’
The jury having found defendant guilty of wilful and wanton misconduct, defendant is liable for these injuries, unless it can be said upon the facts that plaintiff clearly was guilty of wilful and wanton misconduct. Walsh v. Gazin,
The Supreme Court in the instant case said at page 582 of their opinion:
“There is evidence from which the jury might have found that defendant’s driver exhibited a wilful and wanton disregard for the safety of others.”
Defendant contended in the Supreme Court that plaintiff cannot recover on the second count of the complaint, charging defendant with wilful and wanton misconduct, because plaintiff was guilty of wilful and wanton misconduct in ignoring the traffic control signal, and argued there that the evidence in the record clearly showed that plaintiff was guilty of wilful and wanton misconduct. It is significant that the Supreme Court did not say upon the evidence which they had before them that the evidence, and all reasonable inferences that could he indulged in for plaintiff, clearly-showed plaintiff guilty of wilful and wanton misconduct, which would bar his recovery. We had said in our first opinion, at page 14:
“The most favorable position that can be taken in his behalf is that he was guilty of negligence or wilful and wanton conduct in whatever degree the bus driver was guilty.”
Had the Supreme Court been impressed by the contention of defendant and had agreed with our conclusion, above quoted, it had the power to say that the evidence, viewed in its most favorable light, for the plaintiff, about which reasonable minds could not differ, clearly established, as a matter of law, that plaintiff was guilty of contributory negligence or wilful and wanton misconduct. Wabash Ry. Co. v. Brown,
We have again carefully analyzed the evidence in this record. We cannot say that this plaintiff was guilty of wilful and wanton misconduct, which directly caused the accident in question. True, his testimony, as outlined in our prior opinion, was unsatisfactory. At times it was not coherent. This condition is clearly chargeable to the injuries inflicted upon him by the wilful and wanton misconduct of defendant. He should not be penalized- because his memory has been impaired by this injury, if there are sufficient facts in this record to support his claim. This court held in its first opinion that he was not a competent witness because of his mental condition. With this conclusion the Supreme Court did not agree, and said on that subject at page 578:
“We have referred to the record to study the exact language employed by plaintiff in making his answers and, in view of such answers and in the light of evidence of medical experts as to the character of his mental ailment and the effect it has had on his powers of speech, we conclude that he was competent to testify and that the Appellate Court erred in rejecting his testimony in toto. The discrepancies in answers given to the same or similar questions to a great measure indicate lack of control of the power of speech and under the circumstances shown it was for the jury to determine which answers would be given greater weight.”
At page 576, the Supreme Court said:
“A fair sample of such incoherent and meaningless testimony is set forth in the Appellate Court opinion. . . . On the other hand, some of his answers are corroborated by other credible evidence.” (Italics ours.)
The contention of defendant that plaintiff is also guilty of wilful and wanton misconduct is predicated upon his alleged violation of the statute (§32 (a) of the Uniform Traffic Act, ch. 95%, par. 129, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 85.161]), claiming that plaintiff entered the intersection where the accident occurred against the red light.
The section in question, the Supreme Court, at page 579, said:
“. . . prescribes the rule by which traffic is moved at street intersections controlled by automatic stop- and-go lights. It directs that when the color green is exhibited, the traffic facing it shall move forward into the intersection. Such right of way, however, is subject to the provisions that the one advancing into the intersection with the green light ‘ shall yield the right-of-way to other vehicle . . . lawfully within the intersection at the time such signal'is exhibited.’ The second division of paragraph (a) prescribes the duty of the driver who approaches the intersection when the yellow light following the green is exhibited. It directs that when the yellow light flashes in front of him, he shall stop before entering the nearest crosswalk at the intersection ‘but if such stop can not be made in safety, a vehicle may be driven cautiously through the intersection. ’ ’ ’
Plaintiff, at one place in his testimony, claimed that he did not enter the intersection against the red light, that it was green. At another place he claims it was amber. If it was amber when he entered the intersection, then that portion of the section of the statute applies which reads that when the yellow light flashes in front of him, he shall stop before entering the nearest crosswalk, ‘‘ but if such stop cannot be made in safety, a vehicle may be driven cautiously through the intersection.” (Italics ours.)
In reviewing the testimony of the witnesses for defendant, who were passengers on the bus, their credibility being essentially a question for the jury, we find important discrepancies and contradictions, a fact pointed out by the Supreme Court in their review of the evidence on page 581. These witnesses had been riding continuously on a bus up to the time of the accident, from various distant points, such as California, Wyoming, Denver and Nebraska. Some of them were sleepy, tired; others were sitting in a crouched position in their seat. Whether they actually saw the lights and correctly knew the speed of the bus and the automobile, and the distances, about all of which they testified in detail, was within the province of the jury to judge and determine. We believe that the physical facts involved in the accident are more convincing than the testimony of some of these witnesses. It is clear to us that the point of impact was at the southwest portion of the intersection of Madison street and Oak Park avenue, and near the south curb line of Madison street, upon which the bus was traveling in an easterly direction. The plaintiff was driving in a southerly direction on the west side of Oak Park avenue. The witness Lang, for defendant, testified that the left wheels of the bus, as it approached the intersection, were straddling the south rail of the eastbound street car tracks; that the greater part of the bus was south of the rails. If this testimony is true, which was for the jury to determine, and the automobile and the bus were traveling at about the same speed, as testified to by the driver and pointed out by the Supreme Court in its opinion, then it is certain that the automobile must have entered the intersection before the bus did. If plaintiff entered the intersection when the amber light was showing, he had a right, if he thought he could not stop in safety, to drive cautiously through the intersection, as provided for in the section of the statute quoted. The Supreme Court said, at page 582:
“It became a question for the jury to determine whether plaintiff entered the intersection on the green light or whether he entered it on the amber following the green or whether he drove into the intersection against the red light. If he drove into the intersection on the green light as he stated, then defendant’s bus did not have the right of way. If he drove into the intersection when the amber light was exhibited with the green, then if plaintiff was in such position with his car that he could not safely stop, he had the right to proceed cautiously across the intersection and defendant ivas under the duty to alloio the right of way to him.” (Italics ours.)
Since the Supreme Court has concluded that there is some corroboration by other credible evidence of some of plaintiff’s testimony, this physical fact as to the place of impact is, considered with all the other circumstances in evidence, in our judgment, sufficient proof that plaintiff entered the intersection while the amber light was showing. The defendant did nothing to slow down the speed of his bus and failed utterly in his control of the bus to give the right of way to plaintiff, as allowed by statute.
We cannot say upon this record that the verdict of the jury and the judgment of the court are against the manifest weight of the evidence.
Since the remandment of the case to this court, defendant has cited an additional authority, People v. Arcabascio, 395 111. 487, in support of its contention that instructions Nos. 9 and 10 are erroneous. We have again examined these instructions, and we have concluded that the cases cited by defendant do not apply to the instructions in question. In the Arcabascio case, it was pointed out that the jury was compelled to search through many instructions to ascertain what the material issues were. That is not true in the instant case. Instruction No. 1 for plaintiff was complete in defining all the material issues in the case, and therefore, the instructions in question are not subject to the same criticism leveled at the instruction in the Arcabascio case. Kavanaugh v. Washburn,
We find no reversible error in this record. We believe defendant has had a fair trial. The judgment of the superior court accordingly is affirmed.
Affirmed.
O’Connor, P.J., concurs.
Niemeyer, J., dissents.
(See next page.)
The majority opinion misconceives the jurisdiction of the Supreme court on the appeal from the former decision of this court, misconstrues the opinion of that-court and ignores the evidence.
On the appeal from the judgment of this court the Supreme court was limited to an examination of the case as to questions of law only. Civil Practice Act, sec. 92 (3)b [Ill. Rev. Stat. 1945, Ch. 110, par. 216, subpar. 3 (b); Jones Ill. Stats. Ann. 104.092, subpar. 3 (b)]. The contention that the judgment is contrary to the manifest weight of the evidence was not open to consideration in the Supreme court. Liska v. Chicago Rys. Co.,
Turning to consideration of all the evidence, reference must be had to the former opinion of the court (
The plaintiff and Broughton, the latter a passenger on the bus, were the only occurrence witnesses called by plaintiff. The defendant called seven occurrence witnesses — the driver of the bus and six passengers: Zaborowski, Lang, McKittrick, who testified by deposition; Howe, Mrs. Wermer and Miss Neyens. The evidence on plaintiff’s behalf establishes that the impact between the automobile and the bus occurred near the center of Oak Park avenue in the westerly-half of the street and in the eastbound street car track ' on Madison street. Broughton so testified. The Oak Park police called by plaintiff say that the debris from the collision was about the center of Oak Park avenue and about a foot south of the eastbound street car track; that the most northerly skid mark caused by the rear wheels of the bus, on application of the brakes an instant before or after the collision, was between the rails of the eastbound track approximately a foot from the south rail. All witnesses agree that plaintiff was driving in the southbound lane of Oak Park avenue and swerved only slightly just before the impact. The driver and Lang testified that the bus straddled the south rail of the eastbound track as it approached the intersection. All witnesses agree that the direction of the bus was not changed until after the collision when the driver swerved to the right. In reaching the place of impact the automobile traveled 10 or possibly 15 feet farther into the intersection than the bus:
The testimony as to the speed in miles per hour of the two vehicles as they approached and entered the intersection shows a variance in the estimates of speed usually found in testimony of this character. Plaintiff testified that he was traveling 20 to 25 miles per hour. Broughton formed no judgment as to the speed of the automobile. Howe placed its speed at 35 to 40 miles, and Zaborowski at between 50 and 60 miles. Neither Broughton nor any of the seven witnesses called by defendant placed the speed of the bus above 30 miles an hour, although Lang on cross-examination said in answer to a question as to whether the bus might have been going 40 miles an hour, that his judgment might have been off that much. He further testified, as did the driver, that the two vehicles were traveling about the same speed. ■ The driver gave his speed as 20 to 25 miles an hour. Zaborowski, Wermer and Howe give 20 miles an hour as their lowest estimate of the speed of the hus.
All the witnesses except Zaborowski and Lang agree that in approaching the intersection the two vehicles were practically equally distant from it. Plaintiff testified that when he was 40 to 50 feet from the crossing he saw the bus about the same distance from the corner. Broughton said that when the automobile came to the north side of Madison street he thought the bus probably was just starting to cross Oak Park. The testimony of defendant’s witnesses, with the exception of Zaborowski and Lang, corroborates this testimony of plaintiff and his witness. The driver testified that when in the neighborhood of 60 feet from the west curb of Oak Park avenue he saw the automobile 50 or 60 feet (later changed to about 23 feet) north of the stop light on Oak Park avenue. This light was 33 feet north of the north curb line of Madison street. Howe first noticed the green light for Madison street when 75 to 80 feet from Oak Park avenue, and after that saw the automobile 50 feet north of the north curb line of Madison street. Mrs. Wermer first noticed the automobile three or four automobile lengths north of Madison street when the bus was about the length of the bus (33 feet) from the crossing. McKittrick and Miss Neyens did not see the automobile until after the collision. Zaborowski testified that the automobile was 150 feet north of Madison street when the bus was 50 to 75 feet west of Oak Park avenue. This statement is consistent with his testimony that the bus was traveling 20 to 25 miles an hour and the automobile between 50 to 60 miles an hour. Lang, consistently with his testimony that the two vehicles were traveling about the same speed, placed them practically equally distant from the place of impact. He testified that when the front of the bus was about 30 to 35 feet from the place of impact he first noticed the automobile about 40 feet from the place of impact; that the bus was about 25 feet from the Oak Park curb line when he first saw the light red for Oak Park (after it had changed), and the automobile was then a little bit north of the north curb line of Madison street. This testimony of all the witnesses except Zaborowski, that ■the two vehicles in approaching the intersection were practically equally distant from the intersection, and Lang’s testimony that the two vehicles were practically equally distant from the place of impact, proves that they were traveling at substantially the same speed, as Lang and the driver had testified. As the automobile traveled a greater distance in the intersection to the place of impact, it was either a little nearer the intersection or it was traveling at a slightly higher speed, or it was nearer and also traveling faster. However, the difference is not important, and the probability of error in judgment as to distance and speed is the same. Greater accuracy is not obtainable or necessary. The testimony of all the witnesses except Zaborowski and Lang also proves that when the traffic lights changed the two vehicles were practically equally distant from the intersection.
The only conflict in the evidence as to a. material fact is in connection with the color of the light displayed on the traffic lights. It arises from a single statement of the plaintiff that he had the green light as he approached and reached the intersection. In considering the entry of a judgment notwithstanding the verdict — the Supreme court having declared plaintiff to be a competent witness — that statement of plaintiff had to be taken as true. The contradiction of it in plaintiff’s testimony and by testimony of other witnesses had to be disregarded. The conflict, therefore, necessitated submission of the case to the jury on the question of the right of way through the intersection. In examining all the evidence to determine whether the judgment is against the manifest weight of the evidence, that conflict vanishes.
Traffic at the intersection was regulated hy electrically operated signals on a sixty second cycle. The green light for Madison street showed 33 seconds, the last three seconds with the amber, and for Oak Park avenue the green light showed 27 seconds, the last three seconds with the amber. The red light for Madison street showed 27 seconds and for Oak Park avenue 33 seconds, the amber light appearing with the red for one second only before the change to green. When the green light appeared on one street the red light appeared on the other. The only evidence on plaintiff’s behalf as to color of the lights is the testimony of plaintiff. Broughton did not notice the color of the lights. Plaintiff testified on direct examination that the light was green as he approached and reached the intersection. Twice on cross-examination he said that the green light went off and the amber came on when he was in the middle of the block between Washington and Madison streets. This would he about 340 feet north of the intersection. As the amber light plaintiff saw indicated a change to the red light for Oak Park avenue there would be a 36 second interval before the green light for that street appeared again, during which plaintiff, proceeding at not less than 20 miles-an hour, as he testified, would have traveled 1,068 feet, or far beyond the intersection before the reappearance of the green light. If he received the amber light 340 feet north of the intersection he got the red light when approximately 250 feet north and entered the intersection on the red light. His statements are in irreconcilable conflict. One cancels the other and the testimony has no probative value. United States Fidelity & Guaranty Co. v. Continental Baking Co.,
The testimony of every witness called by the defendant shows that plaintiff entered the intersection on the red light. None of the six passengers saw the red light for Madison street change to green. All except Lang testified that they first observed the green light when the bus was west of the intersection, according to their respective estimates.from 70 to 200 feet, and that the bus came into the intersection on the green light. Lang observed that the light on the northwest corner displayed the red light for Oak Park avenue — making the light for Madison street green, when' the bus was about 25 feet from Oak Park avenue. The testimony of the driver corroborates the testimony of these witnesses, that the bus entered the intersection on the green light. Except for one answer on cross-examination his testimony corroborates their testimony that the light was green when they first observed it at the respective distances from the intersection testified to by them. Within a few hours after the collision the driver gave a signed statement to the police in which he said that when he was about a block (a short block, approximately 350 feet) away the red light turned to green for eastbound traffic. He testified to the same effect on direct and cross-examination. On cross-examination he said once that he was about 25 or 30 feet from Oak Park avenue when the light changed. Apparently no one at the trial understood the driver’s answer as it appears in the record. Immediately after the answer and throughout his further cross-examination counsel for plaintiff assumed in his questions that the testimony of the witness was that the light had changed when he was about 300 feet or more from Oak Park avenue, and in his answers to the questions asked by plaintiff’s counsel the witness reiterated that he had received the green light 300 feet or more from Oak Park avenue, and stated that his statement to the police was true. The driver’s statement to the police and his testimony consistent with that statement are corroborated by the testimony of the six passengers and by plaintiff’s repeated statement on cross-examination that he received the amber light following the green for Oak Park avenne in the middle of the block between Washington and Madison streets. The driver’s reiterated statements thus corroborated should not be rejected because of an inadvertent answer, unnoticed by everyone including plaintiff’s counsel. Whatever construction may be given to the driver’s testimony, the undisputed fact remains that there is no testimony, fact or circumstance in evidence — except the statement of the plaintiff that he had the green light as he approached and reached the intersection, canceled by his repeated statement that he got the amber light when he was in the middle of the block — contradicting the testimony of the six passengers or the driver’s statement to the police, or raising any reasonable inference that the bus did not enter the intersection on the green light. If the jury arbitrarily rejected all the driver’s testimony, there remains the testimony of the six passengers that the bus had the green light when not less than 25 or 30 feet from Oak Park avenue.
The majority opinion says that there is “sufficient proof that plaintiff entered the intersection while the amber light was showing.” There is nothing in the record to support this conclusion. Plaintiff does not say that he entered on the amber light. According to his testimony he either received the amber light approximately 340 feet north of the intersection, when as shown above he would have entered and passed through the intersection on the red light, or he received the amber light after entering the intersection. After stating on direct examination that the light was green as he approached and reached the intersection, his counsel immediately asked, “What happened as you were going over? Tell us what happened. Tell the jury what happened.” He answered, “Green and amber. Amber, and bus struck.” If this answer be considered as a statement that he got the amber light “going over” the intersection, he did not enter the intersection on the amber light. Broughton testified that he did not see the color of the lights. There are no physical facts in evidence showing- what light was displayed when the vehicles entered the intersection. Since the traffic lights did not freeze as the vehicles crossed the intersection line, it is difficult to conceive how physical facts could establish the color of the lights. Proof of that fact must.be based on oral testimony and mathematical calculations. Every witness for defendant says that the bus entered the intersection on the green light. No witness testifies that the bus was closer to the intersection than 25 to 30 feet when the green light was observed. There is testimony that it got the green light as far back as the neighborhood of Grove street," about 350 feet. No witness testifies that the automobile entered the intersection ahead of the bus. Broughton, plaintiff’s witness, and Lang, called by defendant, observed the vehicles nearer to the intersection than any other witness. Broughton says that when the automobile came to the north side of Madison street he thought the bus probably was starting to cross Oak Park avenue. At that time, ac-. cording to testimony most favorable to plaintiff, the bus had had the green light while traveling not less • than 25 or 30 feet, during which time the automobile, just coming to the north side, had had the red light. Lang says that when he observed the light red for Oak Park (it had already changed), the bus was about 25 feet from the curb line of Oak Park avenue and the automobile a little bit north of the north curb line of -Madison street. Plaintiff therefore entered the intersection on the red light.
A further contention is made in plaintiff’s behalf that if he did not enter the intersection on the amber light, he was so close to the intersection when the amber light appeared that he could not stop in safety and consequently was entitled to proceed cautiously through the intersection. The rights and duties of drivers of vehicles at intersections controlled by traffic lights are governed by section 32 of the Uniform Traffic Act. (Ill. Rev. Stat. 1945, chap. 951/2, par. 129 [Jones Ill. Stats. Ann. 85.161].) That section provides that traffic receiving the green light “shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection at the time such signal is exhibited,” and that traffic receiving the amber light following the green “shall stop before entering the nearest crosswalk at the intersection, but if such stop cannot be made in safety, a vehicle may be driven cautiously through the intersection.” In construing this section of the statute the Supreme court in the instant case (p. 579) said: “The second division of paragraph (a) prescribes the duty of the driver who approaches the intersection when the yellow light following the green is exhibited. It directs that when the yellow light flashes in front of him, he shall stop before entering the nearest cross-walk at the intersection, ‘but if such stop can not be made in safety, a vehicle may be driven cautiously through the intersection.’” In Landess v. Mahler,
The burden of bringing himself within the protection of the statute is upon plaintiff. On plaintiff’s testimony that he was 340 feet from the intersection when he received the amber light, no claim that a stop could not be made in safety can be urged. On a strained construction of the evidence most favorable to plaintiff, but contrary to the great weight of the evidence, that the bus did not get the green light until within 25 or 30 feet west of the intersection, plaintiff cannot bring himself within the statute as the evidence does not show that he could not have stopped in safety before entering the nearest crosswalk and that he proceeded cautiously through the intersection. When the bus was about 25 feet from the intersection, Lang, who places plaintiff nearest to the intersection at that time, says that the automobile was a little bit north of the north curb line of Madison street. At that time plaintiff had the red light for Oak Park avenue and had received the amber light not less than three seconds before. He was therefore a “little bit” more than 88 feet north of the intersection when the amber light flashed for him. According to all the remaining witnesses, including plaintiff and Broughton but excepting Zaborowski, the two vehicles were practically equally distant from the intersection, and plaintiff was about 113 feet north of the intersection when the amber light appeared. Zaborowski said plaintiff entered the intersection through the red light. Plaintiff therefore was not less than approximately 90 feet north of the intersection and about 55 feet north of the northwest stop light or nearest crosswalk when the amber light following the green light appeared for Oak Park avenue. According to the greater weight of the evidence he was approximately 25 feet farther north of the intersection and stop light.
There was no traffic, vehicular or pedestrian, at or near the intersection as the two vehicles approached and entered it. The asphalt pavement on Oak Park avenue was dry. Plaintiff was driving a Ford. The •brakes were in good condition. He testified that traveling at 20 to 25 miles an hour he could stop in 3 or 4 feet. In Grubb v. Illinois Terminal Co.,
The Supreme court has held that there is evidence from which the jury might have found that the driver was guilty of wilful and wanton conduct, citing in support of the holding that the driver’s right of way through the intersection was a question of fact for the jury, and the testimony of the driver that when about 65 feet west of the intersection he saw plaintiff’s automobile approaching from the north, he did not reduce his speed, he looked to the right and did not again observe plaintiff’s automobile until it was 3 or 4 feet from him, an instant before the collision; that he did not apply his brakes until that time. As heretofore noted, that ruling is based only on the evidence most favorable to plaintiff, taken as true, and without consideration of evidence favorable to defendant. Ignoring the question of whether the evidence as a whole would justify a finding that the driver was guilty of wilful and wanton conduct, the conduct of plaintiff, shown above, parallels that of the driver. Each had the same opportunity to observe the other, the physical conditions and the traffic lights at the intersection; each ignored the presence of the other until the instant before the impact when the collision was inevitable; each was under the same duty to exercise care and caution, except as the driver’s right of way through the intersection, established by the overwhelming weight of the evidence, gave the driver protection. ■ Neither slackened his speed and neither applied his brakes until too close to the place of impact to be effective in preventing the collision; neither sounded a horn or gave other evidence of his approach. If either was guilty of negligence or of wilful and wanton conduct, the other was likewise guilty. Willgeroth v. Maddox,
The overwhelming evidence outlined above, showing that plaintiff entered the intersection on the red light without lawful right and was equally guilty with, if not more guilty than the driver of the bus of negligence or wilful and wanton conduct in causing the collision, is disposed of in the majority opinion by holding that the rejection or acceptance of the testimony of the six passenger witnesses was a matter entirely in the province of the jury. Thus the majority opinion says that in the testimony of these witnesses “we find important discrepancies and contradictions.” None are pointed . out. The writer of this dissent does not find any, except such discrepancies and contradictions as may be expected in the testimony of any lay witness testifying at length some time after the occurrence concerning which he is interrogated and subjected to a vigorous cross-examination. Certainly there are no such glaring and important discrepancies and contradictions as are found in the accepted testimony of the plaintiff. Is the court straining at a gnat and swallowing a camel?
This alleged defect in the testimony of the passenger witnesses, and other alleged defects hereafter discussed, relied upon by the majority of the court to sustain the verdict of the jury, are defects which if they exist must be found in the testimony of the individual witnesses, and are not likely to bo common to the testimony of the group as a whole. The passenger wit-
nesses are apparently disinterested, performing a duty imposed by law and justice of telling in their own way what they saw and heard. They are citizens of different communities and states, engaged in various lawful occupations- — three being soldiers in the service, strangers to each other until the bus trip on which the collision occurred and without further contact with each other except when appearing as witnesses. They are at least of average intelligence, without defect of mind or speech interfering with their testimony. They should not as a group be branded as persons whose testimony is unworthy of belief without specification of defects shown to be applicable to all. It is further said in the majority opinion, “Whether they (the passenger witnesses) actually saw the lights and correctly knew the' speed of the bus and the automobile, and the distances, about all of which they testified in detail, was within the province of the jury to judge and determine.” The right of jurors and judges to reject the testimony of a witness is not an arbitrary and unlimited right. As said in Larson v. Glos,
Although the majority opinion states, “We believe that the physical facts involved” in the accident are more convincing than the testimony of some of these witnesses,” the court again, resorts to a general statement (a prerogative sometimes abused) and does not specify any physical fact which should overcome the oral testimony of so many unimpeached witnesses. However, if, as the majority opinion suggests, the testimony of these witnesses as to the speed of the vehicles, the distances and the lights were rejected, the plaintiff could not be benefited. If the testimony of these witnesses as to speed and distances be rejected, the facts proved by their testimony, namely that the vehicles were approaching from approximately equal distances and at substantially the same speed, would still stand — being proved by the testimony of plaintiff, his witness Broughton, and the driver. If the testimony of the passenger witnesses as to the lights be rejected, then the facts established by their testimony is, nevertheless, proved by the testimony of the driver —contradicted only by the self-contradictory and valueless testimony of the plaintiff. Surely the plaintiff’s testimony cannot establish the burden of proof resting on plaintiff to show his lawful entry into the intersection. Furthermore, there still stands plaintiff’s testimony as to his conduct in approaching and entering the intersection, which conduct parallels that of the driver and proves plaintiff guilty of whatever negligence or wilful and wanton conduct may be established against the driver, and plaintiff is not entitled to recover.
It is the duty of this court to set aside verdicts and judgments Avhich are clearly against the manifest weight of the evidence (Chicago & E. R. Co. v. Meech,