Summary
In McMillian v. McLane, 338 Ill. App. 514, it was noted that Webster's Unabridged Dictionary gives as a principal definition of the word "prove": "To demonstrate by test, to establish, to verify."
Summary of this case from Bertrand v. AdamsOpinion
Term No. 49M3.
Opinion filed September 27, 1949. Released for publication October 26, 1949.
1. AUTOMOBILES AND MOTOR VEHICLES, § 117.5 — evidence in guests' action supporting verdict for driver. In guests' action against driver of automobile for injuries received in automobile accident, evidence supported jury's verdict for driver.
See Callaghan's Illinois Digest, same topic and section number.
2. AUTOMOBILES AND MOTOR VEHICLES, § 167.1fn_ — review by Appellate Court of conflicting evidence in accident case. Where automobile accident case fell into ordinary category of a dispute over facts and proper inferences to be drawn therefrom, and there was substantial evidence to support jury's verdict, Appellate Court could not disregard verdict or declare that it was against manifest weight of evidence merely because there was also substantial evidence to the contrary.
3. AUTOMOBILES AND MOTOR VEHICLES, § 167.2fn_ — nonreversible error in instructions in accident case. That instructions given for defendant in automobile accident case defined wilful and wanton misconduct in abstract terms was not reversible error, although it might have been better to have applied the definition to the facts.
4. AUTOMOBILES AND MOTOR VEHICLES, § 144fn_ — nonobjectionable instructions in accident case. Instructions given for defendant in automobile accident case requiring plaintiffs to "show" certain things by preponderance of evidence were not objectionable for use of quoted word instead of "prove," since both words were interchangeable in common parlance.
5. AUTOMOBILES AND MOTOR VEHICLES, § 167.2fn_ — nonreversible error in instructions in accident case. Instruction in automobile accident case requiring jury to find defendant guilty of such conduct as to show an utter disregard for life "of the plaintiffs," who were riding in defendant's automobile as guests, while improperly using quoted words instead of "of other persons" did not warrant reversal of judgment for defendant, where other given instructions, taken as a series, informed jury that defendant was required to be found guilty of utter disregard for life of other people, including plaintiffs.
Appeal by plaintiffs from the Circuit Court of St. Clair county; the Hon. RALPH L. MAXWELL, Judge, presiding. Heard in this court at the February term, 1949. Judgment affirmed. Opinion filed September 27, 1949. Released for publication October 26, 1949.
JOHNSON JOHNSON, of Belleville, for appellants.
KRAMER, CAMPBELL, COSTELLO WIECHERT and NORMAN J. GUNDLACH, all of East St. Louis, for appellee.
This is an action in which the plaintiffs allege that by the wanton and wilful negligence of the defendant they incurred certain injuries and damages while riding in the defendant's car as his guests. The jury returned verdicts in favor of the defendant and the plaintiffs appealed on the grounds (1) that the verdicts were against the manifest weight of the evidence, and (2) that the court erred in giving certain instructions.
The evidence is conflicting, the two plaintiffs and another passenger in the car testified that the defendant was driving at a speed of sixty miles per hour or more, and that they warned and cautioned him repeatedly that he was going too fast, "to cut it out," "to take it easy," "that someone would get his neck broken," the defendant and another passenger in the car categorically denied that any such protests were made and the defendant stated further that he was driving no faster than 30 or 35 miles per hour. In addition the plaintiffs charged and endeavored to prove that the defendant struck the rear of another car going in the same direction, whereas the defendant stated that he struck a car which had been going in the opposite direction, but which had run off the road and spun over into his lane of traffic. In this latter contention the defendant was supported by the testimony of two witnesses who were walking along the road at the point of the accident and who stated that they had seen the other car (a Buick) going in the opposite direction, run off the pavement and then spin over into defendant's lane. The occupants of the Buick did not appear as witnesses for either side.
The plaintiffs also claimed that defendant several times took his eyes off the road to look at the woman beside him, and did so just before the collision that resulted in plaintiffs' injuries.
Assuming, but not deciding, that the testimony for plaintiffs showed conduct of the defendant which constituted more than ordinary negligence, it is apparent that this testimony is contradicted in essential particulars, and that defendant's version of the occurrence is corroborated by the testimony of wholly disinterested witnesses. It is also apparent that the jury may properly have found that the testimony of the two men on foot showed the collision was unavoidable so far as defendant was concerned, and was solely the fault of the driver of the Buick, who did not appear at the trial.
There being substantial evidence to support the verdict of the jury, this court cannot declare the verdict is against the manifest weight of the evidence, merely because there is also substantial evidence to the contrary. The latter must palpably outweigh the former, otherwise this court would be invading the constitutional prerogative of the jury. Bliss v. Knapp, 331 Ill. App. 45. This case falls into the ordinary category of a dispute over facts, and the proper inferences to be drawn therefrom, hence we are not justified in disregarding the jury's verdict. Thirstrop v. Alton S. R., 335 Ill. App. 1.
Objection is made to three instructions given for the defendant. One defined wilful and wanton misconduct as such as to show an utter disregard for the life and limb of other people. The only objection made is to the abstract form. It was pertinent and essential in this case to define wilful and wanton misconduct. While it might have been better to apply the definition to the facts, it is not reversible error to give a definition in abstract terms, when applicable to the case. Menolascino v. Superior Felt Bedding Co., 313 Ill. App. 557.
The next objection is that two of defendant's given instructions required the plaintiff to "show" certain things, by a preponderance of the evidence, instead of to so "prove" them. The case of Hughes v. Medendorp, 294 Ill. App. 424, is cited, wherein the court disapproved an instruction on other grounds, but also criticized the use of the word "show" as implying a greater burden than "prove," with a quotation from Black's Law Dictionary, which does not appear to support the court's statement.
In our opinion that court's criticism is not sustained in correct English usage. In the first place, small dictionaries of the type likely to be used by laymen, define "show" as to prove, and conversely, define "prove" as to show. Secondly, the more elaborate works, such as Webster's Unabridged, with their many definitions, indicate that the fundamental idea of the word "show" is to bring into view or to attention, to tell, to relate, etc. On the other hand the fundamental idea in the word "prove" is to demonstrate by test, to establish, to verify, etc. If there is any difference, the word "show" probably implies the lesser burden, but we regard the two words as interchangeable in common parlance.
In Kavanaugh v. Washburn, 320 Ill. App. 250, 254, the court declined to follow the Hughes case as to the word "show" saying: "In the ordinary use of language as understood by an average juror, the word merely advised the jury that the plaintiff must present evidence tending to prove such fact." We deem this the better view.
Finally, it is objected that the jury was required to find the defendant "guilty of such conduct as to show an utter disregard for the life and limb of the plaintiffs." It is contended the concluding words should be "of other persons." The latter is the correct form, but we find that the court gave for plaintiffs an instruction referring the gross want of care to "the rights of others," and also gave defendant's definition first above mentioned, which applied to the "life and limbs of other people." None of the instructions was peremptory in form. Taking them as a series, as we must, it appears they inform the jury that defendant must be found guilty of utter disregard for the life and limb of other people, including the plaintiffs. While we do not approve the form of the instruction, in view of the facts established by the evidence, and the series of instructions, we do not see how the jury could have been misled by the terminology used. Under these conditions we cannot reverse a case by singling out one instruction and ascribing error to it when standing alone. Jones v. Esenberg, 299 Ill. App. 551; Sprickerhoff v. Baltimore Ohio Ry., 323 Ill. App. 340.
Finding no reversible error in the record as presented to us, the judgment is affirmed.
Judgment affirmed.
BARDENS, P.J., and CULBERTSON, J., concur.