Voss v. Tune

Wilbert Voss (plaintiff), administrator of the estate of Anton Haar, brought suit against Kevin Tune and Bauer Brothers Construction Company (defendants). Plaintiff's complaint alleged that Tune, while within the scope of his employment with Bauer Brothers, failed to exercise ordinary care in the operation of his vehicle, and as a consequence struck and injured Anton Haar. Following a jury trial, the jury returned a verdict in favor of both defendants, and the court entered judgment on the verdict. The court subsequently granted plaintiff's post-trial motion and allowed a new trial on all issues, finding that the evidence established some degree of negligence on the part of Tune. Defendants filed a petition for leave to appeal to this court pursuant to Supreme Court Rule 306 (87 Ill.2d R. 306), and we granted the petition. We affirm. • 1, 2 Initially, we note that there is disagreement regarding the standard to be applied by a trial judge in determining whether to set aside a jury verdict and grant a new trial in a civil case. This court has held that a trial judge is only justified in setting aside a verdict and allowing a new trial when the verdict is contrary to the manifest weight of the evidence. (Bean v. Volkswagenwerk Aktiengesellschaft (1982), 109 Ill. App.3d 333, 335, 440 N.E.2d 426.) The appellate court for the first district has held that a trial judge is warranted in granting a new trial when the verdict of the jury is not supported by a preponderance of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App.3d 432, 436-37, 359 N.E.2d 1078.) We believe that the manifest weight of the evidence standard expressed in Bean is the one which we are compelled to follow, as our supreme court has specifically articulated its adherence to that same standard. (Mizowek v. De Franco (1976), 64 Ill.2d 303, 310, 356 N.E.2d 32.) Finally, in analyzing the propriety of a trial court order granting a new trial, a reviewing court will not reverse such an order unless that order is shown to constitute an abuse of the trial court's discretion. Looft v. Missouri Pacific R.R. Co. (1982), 104 Ill. App.3d 152, 156, 432 N.E.2d 1152.