Similarly, allegations of prejudice resulting from pretrial conference discussions based on a belief that the case would be heard by a jury do not meet the good-cause-showing requirement. ( Gray v. Schottmiller (1974), 18 Ill. App.3d 812, 310 N.E.2d 750.) In Gray, a jury demand was originally filed by the defendant and the defendant withdrew that demand immediately prior to trial.
Furthermore, from the testimony of Aarup, Campau and Aycock, it appears that decedent may not have been properly attentive in the operation of the vehicle, and thus plaintiffs fail to eliminate the possibility that decedent was responsible to some extent for the accident. • 2 We are thus left with the mere occurrence of the accident, which, standing alone, cannot support an inference of negligence. ( Publication Corp. v. Chicago River Indiana R.R. Co. (1977), 49 Ill. App.3d 508, 364 N.E.2d 523; Gray v. Schottmiller (1974), 18 Ill. App.3d 812, 310 N.E.2d 750.) That general rule has been applied to the situation in which an automobile inexplicably leaves the highway ( Rotche v. Buick Motor Co. (1934), 358 Ill. 507, 193 N.E. 529), and it has been held that where plaintiff's 1-month-old car caught fire after being driven 1,300 miles, such occurrence did not authorize the inference that defendant was responsible ( Haas v. Buick Motor Division (1959), 20 Ill. App.2d 448, 156 N.E.2d 263). Similarly, in the present case, the fact that the Bigelis car veered off the highway does not, of itself, authorize the inference of defendant's negligence.
Although plaintiff applied his brakes when he was first able to see the truck he could not avoid striking it. See Larson v. Thomashow (1974), 17 Ill. App.3d 208, 307 N.E.2d 707; Eichorn v. Olson (1975), 32 Ill. App.3d 587, 335 N.E.2d 774; Barbour v. Chicago Transit Authority (1976), 41 Ill. App.3d 888, 354 N.E.2d 519; Gray v. Schottmiller (1974), 18 Ill. App.3d 812, 310 N.E.2d 750. Similarly, we do not find the verdict in favor of plaintiff and against defendants is against the manifest weight of the evidence so as to entitle defendants to a new trial.
Plaintiff, relying on these facts, contends essentially that the mere fact the derailment occurred under such circumstances is a prima facie showing that the speed must have been unreasonable. However, it is well settled that a claim of negligence may not be inferred from the mere fact of an accident or injury. ( Gray v. Schottmiller (1974), 18 Ill. App.3d 812, 310 N.E.2d 750; Summers v. Hopwood (1970), 125 Ill. App.2d 441, 261 N.E.2d 36.) Simply put, plaintiff has failed to set forth evidence tending to prove its allegation that defendant caused its railroad cars "to move at a dangerous and unsafe rate of speed." Where no evidence is introduced tending to prove the allegation of the complaint, or if but a bare scintilla of evidence has been adduced, the trial court should direct a verdict for defendant. Lovejoy v. National Food Stores, Inc. (1973), 12 Ill. App.3d 982, 299 N.E.2d 816.
It is well settled in Illinois that in ruling on a defendant's motion for a judgment at the close of the plaintiff's evidence in a trial without a jury, a trial judge is required to evaluate the evidence in terms of (1) the credibility of all the witnesses, (2) the reasonable inferences to be drawn from the evidence, and, in general, (3) the weight and quality of the testimony elicited. ( E.g., Rey v. Rey, 23 Ill. App.3d 274, 276, 319 N.E.2d 105, 107; Gray v. Schottmiller, 18 Ill. App.3d 812, 815, 310 N.E.2d 750, 753.) Once the trial judge, subsequent to considering the above factors, makes a final determination and enters a judgment for the defendant, such finding will not be disturbed on appeal unless the reviewing court ascertains from its own examination of the record that the ruling was against the manifest weight of the evidence.
• 4 The court, in ruling on the motion to dismiss, under section 64(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 64(3)) must weigh the evidence including any evidence favorable to the defendant. (See In re Estate of Pomeroy, 21 Ill. App.3d 648, 651 (1974); Gray v. Schottmiller, 18 Ill. App.3d 812, 815 (1974).) It is clear that the trial judge granted the motion to dismiss based on his findings that while the oral contract was not enforceable under the Statute of Frauds, an agreement had been reached which had not been repudiated by the defendant and that $5000 had been paid down on the purchase price.
Rule 41(b) declares that on a defendant's motion at the close of plaintiff's evidence "in an action tried by the court without a jury the court as trier of the facts may then determine them * * *." Not long thereafter some cases retreated to the prima facie standard: see Gray v. Schottmiller, 18 Ill. App.3d 812, 815; People ex rel. Scott v. Convenient Food Mart, Inc., 21 Ill. App.3d 97, 110; Rey v. Rey, 23 Ill. App.3d 274, 276. The last expression to date is in Jackson v. Spivey, 26 Ill. App.3d 670, 674, where the court quoted extensively from the Hawthorn Mellody case apparently with approval.
On appeal the reviewing court must conclude that the trial court's finding is against the manifest weight of the evidence in order to reverse. Gray v. Schottmiller (1974), 18 Ill. App.3d 812, 815; Chappell v. Juergens (1973), 11 Ill. App.3d 469, 472-3; De Bello v. Checker Taxi Co. (1972), 8 Ill. App.3d 401, 414. • 3 It is our view that in ruling on a motion at the close of the plaintiff's evidence, the trial court sitting without a jury should not consider the evidence in the light most favorable to the plaintiff but must weigh the evidence including any that may be favorable to defendant.