¶1dissenting:
¶2While I agree with the majority that there are Illinois Appellate Court cases which have held that a jury’s determination that a plaintiff was not guilty of contributory negligence and a general verdict in favor of a defendant are not inconsistent, I do not agree that such is true in the case before us. Under some factual conditions, including the one here, the general verdict for defendant and the special verdict for plaintiff would be inconsistent.
¶3The trial court filed a written memorandum of opinion when it granted plaintiff a new trial, and in that memorandum, the court made several findings of fact, among which was an express finding that plaintiff was already in the intersection when he saw defendant approaching on 12th Street. Unless the record fails to support the trial court’s finding, I believe a reviewing court is required to accept it. Here we cannot say that the record fails to support the trial court’s finding, since the record on appeal does not include the testimony of the witnesses at trial (only the testimony of the rebuttal witnesses). The majority opinion states that there was “no definitive evidence” as to who approached the intersection first — an observation that cannot be substantiated on the basis of the incomplete record before this court. We are, of course, required to presume that the omitted evidence was sufficient to support the decision of the trial court. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) I cannot agree with the majority that the trial court should be reversed on the theory that the unknown evidence must not have supported the trial court.
¶4Under the Illinois Vehicle Code, defendant was required to yield the right-of-way to a vehicle on her right approaching the intersection at approximately the same time (Ill. Rev. Stat. 1975, ch. 95V2, par. 11 — 901), and defendant was also required to reduce speed to avoid colliding with a vehicle which had entered the intersection ahead of her vehicle (Ill. Rev. Stat. 1975, ch. 951/2, par. 11 — 601(a)). Presuming, as a reviewing court must, that here the plaintiff was in the intersection either at the same time or in advance of the defendant, then defendant must have violated one of those provisions of the Illinois Vehicle Code and must have been guilty of some degree of negligence.
¶5I am convinced that defendant has failed to meet her burden of showing that the trial court abused its discretion in granting plaintiff a new trial, and therefore, I would affirm.