                                Illinois Official Reports

                                       Appellate Court



                         Wiggins v. Bonsack, 2014 IL App (5th) 130123



Appellate Court           TABITHA WIGGINS, Plaintiff-Appellant, v. SHEILA BONSACK,
Caption                   Defendant-Appellee.


District & No.            Fifth District
                          Docket No. 5-13-0123


Filed                     August 26, 2014



Held                       In an action arising from a vehicular collision at an intersection where
(Note: This syllabus defendant was attempting to exit a gas station and cross two lanes of
constitutes no part of the southbound traffic to turn left and head north and defendant was struck
opinion of the court but by plaintiff’s southbound car when she pulled out of the gas station
has been prepared by the after a truck stopped for a traffic light in the southbound traffic and
Reporter of Decisions created a gap and waved defendant to proceed, the general verdict for
for the convenience of defendant was reversed and the cause was remanded with directions to
the reader.)               enter a judgment for plaintiff and to hold a new trial on damages only,
                           since defendant was clearly negligent in proceeding to make the left
                           turn on the basis of the truck driver’s wave without being able to see
                           plaintiff’s vehicle, and in the absence of any medical evidence from
                           defendant rebutting the testimony of plaintiff’s chiropractor, it would
                           be difficult to draw the inference that plaintiff suffered no injury.



Decision Under            Appeal from the Circuit Court of Franklin County, No. 10-L-58; the
Review                    Hon. Robert W. Lewis, Judge, presiding.



Judgment                  Reversed and remanded with directions.
     Counsel on               Matthew H. Caraway, of Sam C. Mitchell & Associates, of West
     Appeal                   Frankfort, for appellant.

                              Leslie B. Shinners and Mark R. Kurz, both of Boyle Brasher LLC, of
                              Belleville, for appellee.


     Panel                    JUSTICE GOLDENHERSH delivered the judgment of the court, with
                              opinion.
                              Justices Chapman and Cates concurred in the judgment and opinion.


                                                OPINION

¶1         Plaintiff, Tabitha Wiggins, appeals from a judgment of the circuit court of Franklin County
       in favor of defendant, Sheila A. Bonsack, entered after a jury returned a general verdict in favor
       of defendant in an automobile accident case. The issues on appeal are: (1) whether plaintiff
       was entitled to a judgment notwithstanding the verdict (judgment n.o.v.), (2) whether the
       verdict in favor of defendant was against the manifest weight of the evidence, and (3) whether
       defense counsel’s comments during his opening statement denied plaintiff a fair trial. For the
       following reasons, we reverse and remand for entry of judgment in favor of plaintiff on the
       issue of liability and a new trial on the issue of damages only.

¶2                                                FACTS
¶3         Plaintiff and defendant were involved in a two-car traffic accident near the intersection of
       Logan Street and Route 149 in West Frankfort. The intersection is a four-way intersection with
       traffic control devices in each direction. Logan Street runs north-south and intersects with
       Route 149, which runs east-west. At the place where the accident occurred, Logan Street has
       five lanes of traffic, two southbound lanes, two northbound lanes, and a turn lane for traffic to
       turn east onto Route 149.
¶4         Defendant stopped to get gas after work and was attempting to exit Podge’s Service Station
       located near the intersection by turning left out of Podge’s parking lot to travel north on Logan
       Street. In order to turn left onto northbound Logan, it was necessary for defendant to cross two
       lanes of southbound traffic. Due to heavy traffic at the time, defendant sat for two to three
       minutes waiting for a break in traffic in order to exit. According to defendant, an unidentified
       man in a red truck came to a stop in the southbound lane closest to Podge’s and left a gap
       between his truck and the two cars in front of him that were stopped at the red light at the
       intersection. The driver of the red truck waved defendant through. Defendant proceeded
       slowly, but plaintiff’s car crashed into the front of defendant’s car.
¶5         Plaintiff was 15 years old when the accident occurred and was driving on a permit.
       Plaintiff’s mother was in the passenger seat. Plaintiff was approaching the traffic light at the
       intersection previously described. The light was red in her direction. Plaintiff was applying her
       brakes when defendant’s car came out into her lane, causing the vehicles to collide. Plaintiff
       testified that when the accident occurred, she “was going the speed limit or under ’cause it was

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     a stoplight.” She estimated she was going 20 miles per hour or less. Plaintiff was driving a Jeep
     Cherokee, which was equipped with airbags. The airbags did not deploy as a result of the
     accident. The right front panel of plaintiff’s vehicle hit the left front quarter panel of
     defendant’s car.
¶6       Plaintiff saw the driver of the red truck making a waving gesture immediately before
     impact. She said she noticed the wave and then the crash was “very, very fast. Like, almost
     instantly.” Plaintiff testified she never saw defendant’s car before impact, so there was nothing
     she could do to avoid the crash. When the crash occurred, plaintiff “went forward and, like,
     backward really fast.” Plaintiff said the impact was hard. Plaintiff testified that the driver of the
     red truck was at fault for the accident for waving defendant into traffic, but it was also
     defendant’s fault for trusting the driver of the red truck and not relying on her own instincts.
¶7       Defendant testified that the red truck was blocking her vision, so she could not see into
     plaintiff’s lane, but she nevertheless tried to turn based upon the waving gesture of the driver of
     the red truck. She estimated she was going between 5 and 10 miles per hour when the collision
     occurred. Defendant did not see plaintiff’s car before the crash. Defendant agreed it was a
     “hard impact.” Defendant’s car had to be towed from the scene. Defendant admitted she had
     “no clue” who was driving the red truck or whether or not he was a safe driver. She said, “I ***
     put my trust into somebody else that waved me out into traffic.” Defendant believed the driver
     of the red truck caused the accident, but also thought “all three,” the driver of the red truck,
     plaintiff, and defendant, were somewhat at fault. Defendant explained as follows:
             “We’ve got someone that’s waving out. You’ve got me, that I actually took, you know,
             someone−trusted somebody to say that it was all clear. And you’ve got someone else
             that’s coming up on a red light, that’s supposed to be braking already. And if she was
             braking or slowing down for this red light, maybe she wouldn’t hit me so hard. She
             wouldn’t have been going so fast. Who knows? There’s [sic] so many possibilities as to
             what could have happened or what somebody should have done. You never know.”
     Defendant admitted that in hindsight she wished she would have just ignored the man in the red
     truck. Defendant initially testified that she thought plaintiff could have done something to
     prevent the accident, but later admitted that because she never saw plaintiff prior to impact, she
     has no clue what plaintiff could have done. Defendant also admitted she did not think plaintiff
     did anything to cause the accident.
¶8       Clint Willis, a police officer, testified that he responded to the scene of the accident.
     Defendant told him the accident occurred when she was coming out of the gas station and
     traffic was stopped at the stoplight when the driver of a vehicle closest to her waved her
     through to cross the lanes of traffic. Officer Willis testified he was aware of the rule of the road
     that a driver about to enter or cross a highway from a private drive or alley has the duty to yield
     right-of-way to all vehicles approaching on the highway to be entered.
¶9       Plaintiff refused treatment at the scene. She later started experiencing sharp pains in her
     neck, headaches, and lower back pain. Ultimately, she sought treatment with Dr. Kent Herron,
     a chiropractor in West Frankfort. Her first treatment with Dr. Herron was on February 29,
     2008. Plaintiff testified she started experiencing pain prior to that date, but did not immediately
     seek treatment, but waited “until it [the pain] got worse.” The headaches she experienced were
     “way worse” than a regular headache and over-the-counter medication did not give her relief.
     She participated in numerous athletic events and team sports, including volleyball. Plaintiff


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       was a setter, so looking up for the ball really bothered her neck. Plaintiff initially self-treated
       by taking naps and applying ice.
¶ 10       Dr. Herron testified that plaintiff’s complaints and medical findings, including decreased
       range of motion in her cervical spine and lumbar spine, tenderness to touch, and spasms, were
       consistent with the history of the collision provided by plaintiff. Dr. Herron diagnosed plaintiff
       with cervical whiplash with a lumbar sprain/strain and opined that plaintiff’s injuries were
       caused by the collision. Dr. Herron treated plaintiff 70 times between February 2008 and June
       2010, when he discharged plaintiff and found her to be at maximum medical improvement.
¶ 11       Dr. Herron opined plaintiff would continue to have intermittent periods of pain and
       discomfort due to the injuries she sustained in the accident. Dr. Herron further testified that it
       was normal for people, especially young people, to wait months before seeking medical
       treatment due to their misguided belief that the pain would simply go away. Dr. Herron
       testified that plaintiff seemed like the type of young girl who tried to tough through the pain.
¶ 12       Defendant offered no medical testimony. There was no evidence that plaintiff suffered
       prior neck or back pain or suffered from headaches. At the close of all the evidence, the trial
       court directed a verdict for plaintiff, finding defendant negligently operated her car at the time
       of the crash and that defendant’s negligence was a cause of the crash, but denied plaintiff’s
       motion for a directed verdict on liability. In light of the directed verdict, the trial court refused
       to instruct the jury on defendant’s defense that the unknown man in the red truck was the sole
       proximate cause of the collision. The trial court did, however, instruct the jury on defendant’s
       other affirmative defense, contributory negligence. Defendant asserted that plaintiff was
       contributorily negligent in failing to operate her vehicle at a safe speed and in failing to slow or
       stop her vehicle upon recognizing that the driver of another vehicle had signaled that it was
       safe to come out into the roadway. The trial court also instructed the jury on proximate cause
       and damages.
¶ 13       The jury returned a general verdict in favor of defendant. Plaintiff moved for a judgment
       n.o.v. or, in the alternative, a new trial. The trial court denied plaintiff’s motion and entered
       judgment in favor of defendant. Plaintiff now appeals.

¶ 14                                              ISSUES
¶ 15       The first issue raised on appeal is whether plaintiff was entitled to a judgment n.o.v.
       Plaintiff argues that judgment should be entered finding defendant liable because the evidence
       when viewed in the light most favorable to defendant so overwhelmingly favors plaintiff that
       the verdict for defendant cannot stand. We agree.
¶ 16       A trial court should enter a directed verdict or a judgment n.o.v. in cases in which all of the
       evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly
       favors the movant that no contrary verdict based upon the evidence could ever stand. Pedrick v.
       Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967). We review
       de novo a trial court’s decision on a motion for a judgment n.o.v. McClure v. Owens Corning
       Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999). In the instant case, we
       agree with plaintiff that the evidence, when viewed in the light most favorable to defendant, so
       overwhelmingly favors plaintiff that the jury’s verdict in favor of defendant simply cannot
       stand.



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¶ 17       The record shows the accident occurred when defendant was attempting to make a left turn
       out of a gas station at a busy intersection. In order to do so, she was required to cross two lanes
       of traffic headed in the opposite direction. The parties agree that a man in a red truck made a
       waving motion. Defendant testified she assumed the man was indicating that it was safe for her
       to make a left-hand turn; however, she admitted she could not see the lane next to the red truck
       and never saw plaintiff’s car prior to impact. While defendant thought the man in the red truck
       was mainly at fault, she admitted that she was also at fault for trusting the man in the red truck
       to tell her it was clear to go even though she could not see into the lane of oncoming
       southbound traffic in which plaintiff was traveling. Furthermore, defendant admitted that
       plaintiff did nothing to cause the collision.
¶ 18       While defendant testified she thought plaintiff might have been able to prevent or avoid the
       accident by going slower or braking earlier, there is nothing in the record to support this
       assertion. The police officer who responded to the scene testified that in Illinois when a driver
       is about to enter a roadway from a private drive or alley that driver has a duty to yield the
       right-of-way to vehicles already traveling on the roadway. Thus, defendant had a duty to yield
       the right-of-way, which she failed to do. Despite the fact that her vision was blocked,
       defendant pulled out into the lane of traffic in which plaintiff was traveling.
¶ 19       Plaintiff testified there was a red light at the intersection ahead for which she was braking
       and she was going 20 miles per hour or less. There is absolutely no evidence in the record to
       indicate plaintiff was speeding. While plaintiff did see the driver of the red truck make a
       waving gesture with his hand, the impact between her car and defendant’s car happened almost
       simultaneously with the waving gesture; there was no time for plaintiff to come to a complete
       stop. Furthermore, plaintiff was not even sure the waving gesture was meant to direct a car into
       the lane of traffic into which plaintiff was traveling. Finally, because plaintiff was already
       braking for the red light ahead, defendant’s assertion that plaintiff should have somehow been
       able to slow down or fully brake in order to avoid the accident fails, especially in light of the
       fact that plaintiff did not even see defendant’s car until impact.
¶ 20       The trial court entered a directed verdict specifically finding defendant at fault. Defendant
       insists that there is sufficient evidence in the record to show that plaintiff was contributorily
       negligent and, therefore, the trial court was correct in instructing the jury on contributory
       negligence and the defense verdict must stand. However, as discussed above, the record lacks
       any credible evidence to show that plaintiff was in any way at fault or negligent for the
       accident. Defendant’s speculation to the contrary has no factual basis and is contrary to her
       own testimony in which she admitted that she never even saw plaintiff’s car until impact. With
       no evidence that plaintiff was contributorily negligent, the trial court erred in giving
       defendant’s proferred contributory negligence instruction.
¶ 21       Jury instructions are meant to provide jurors with accurate principles of law applicable to
       the evidence which has been submitted to them, and an instruction is only justified if it is
       supported by some evidence in the record. Gaines v. Townsend, 244 Ill. App. 3d 569, 576, 613
       N.E.2d 796, 801 (1993). In the absence of any evidence of a plaintiff’s contributory
       negligence, it is error to submit a defendant’s instructions on contributory negligence over
       plaintiff’s objections. Hickox v. Erwin, 101 Ill. App. 3d 585, 590, 428 N.E.2d 520, 524 (1981).
       Accordingly, it was error for the trial court to give a contributory negligence instruction here.
¶ 22       In this case, however, the jury rendered a general verdict. When a jury enters a general
       verdict for defendant, we do not know on what basis it made its findings. Maple v. Gustafson,

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       151 Ill. 2d 445, 449, 603 N.E.2d 508, 510 (1992). We do not know whether the jury entered the
       verdict in favor of defendant due to a mistaken belief that plaintiff was contributorily
       negligent, because it found no causal connection between plaintiff’s alleged injuries and the
       accident, or because it found plaintiff suffered no damages as a result of the accident. Plaintiff
       contends the evidence at trial overwhelmingly establishes plaintiff was injured in the collision
       and a contrary verdict could never stand.
¶ 23        On the other hand, defendant argues that the evidence did not establish plaintiff was injured
       in the collision and, thus, the jury properly ruled for defendant. Defendant asserts she was not
       required to present her own medical testimony, but properly discredited plaintiff and her
       chiropractor on cross-examination. Given the delay in symptoms and an 87-day delay in
       treatment, defendant insists that plaintiff is not entitled to either a judgment n.o.v. or a new
       trial.
¶ 24        The instant case is similar to Hickox, in which the plaintiff, the driver of a car, brought suit
       to recover damages for personal injuries allegedly resulting from her vehicle’s being struck
       from behind by a truck driven by the defendant. On review, a panel from this court found
       abundant evidence to establish the defendant’s negligence as the proximate cause of the
       plaintiff’s injuries and no evidence of contributory negligence; thus, the case was remanded
       with directions to enter judgment in favor of the plaintiff and to hold a new trial on the issue of
       the plaintiff’s damages only. Hickox, 101 Ill. App. 3d at 590, 428 N.E.2d at 524. Given the
       general verdict rendered in the instant case, we believe the outcome in Hickox is also
       appropriate here.
¶ 25        Whom to believe and the weight to be given all of the evidence are matters for the trier of
       fact, and its decisions should not be disturbed on review unless manifestly erroneous. Maple,
       151 Ill. 2d at 460, 603 N.E.2d at 515. If the trial court, in the exercise of its discretion, finds the
       verdict is against the manifest weight of the evidence, it should grant a new trial. On the other
       hand, where there is sufficient evidence to support the verdict of the jury, it is an abuse of
       discretion for the trial court to grant a motion for a new trial. Maple, 151 Ill. 2d at 456, 603
       N.E.2d at 513.
¶ 26        Here, plaintiff offered the testimony of her chiropractor, who testified that her injuries were
       consistent with the type of accident she described and that her delay in treatment was not
       unusual given her tender years and her belief the symptoms would disappear. Defendant
       offered no medical evidence to the contrary. Given the evidence, it is difficult to imagine how
       the inference could be drawn that plaintiff did not actually suffer any injury due to defendant’s
       negligence, but it may be possible the jury did not find the chiropractor credible or plaintiff
       credible, especially in light of plaintiff’s 87-day delay in treatment, her statements
       immediately after the accident that she was not hurt, and her continuation in numerous
       sports-related activities following the accident.
¶ 27        However, because the record before us is clear that defendant’s negligence was the
       proximate cause of the accident and plaintiff was not contributorily negligent, the instant case
       must be reversed and remanded with directions to enter judgment in favor of plaintiff on the
       issue of liability and to hold a new trial on the issue of plaintiff’s damages only. Due to our
       determination on the first two issues raised by plaintiff, we need not address the final issue
       raised in this appeal concerning the prejudicial impact of comments made by defense counsel
       during opening statements.


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¶ 28                                          CONCLUSION
¶ 29        For the foregoing reasons, we hereby reverse the judgment of the circuit court of Franklin
       County and remand with directions to enter judgment in favor of plaintiff and to hold a new
       trial on the issue of plaintiff’s damages.

¶ 30      Reversed and remanded with directions.




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