( Hicks v. Donoho (1979), 79 Ill. App.3d 541, 399 N.E.2d 138.) As stated by the court in Hadden v. Fifer (1949), 339 Ill. App. 287, 291-92, 89 N.E.2d 854, "[t]he question presented by a plaintiff's motion for a directed verdict in an action at law is whether there is any evidence fairly tending to prove a defense to the cause of action * * *." The plaintiff's amended complaint charges that the Hospital had a duty under the law to exercise reasonable care for the condition of well-being and safety of the plaintiff while in and confined to the Hospital.
[3-5] Where a party receiving an adverse verdict seeks a judgment notwithstanding the verdict, it is the duty of the trial court to consider all of the evidence in the case most favorably to the party against whom the motion is directed, and if there is evidence in the record upon which reasonable minds could disagree, the motion should be denied. Biggerstaff v. Estate of Nevin, 2 Ill. App.2d 462, 119 N.E.2d 826; Hadden v. Fifer, 339 Ill. App. 287, 291, 89 N.E.2d 854; Palmer v. Poynter, 24 Ill. App.2d 68, 71, 163 N.E.2d 851. On all of the evidence the jury could reasonably have found that defendant Barra made a reasonable inspection of the concrete mixer truck on the day of the accident.
It is contended the testimony of several witnesses that Emery, at the tavern, drank one bottle of beer or only a part of a bottle of beer; that he drove his automobile for twenty-five miles without mishap before the accident; and that he seemed to be having some trouble with the vehicle; was sufficient to support the verdict of the jury in her favor on the count predicated on the Dram Shop Act of this State. As a consequence, it is contended that the Trial Court was without authority to disturb the verdict of the jury under such circumstances. While we are cognizant of the fact and adhere consistently to the principle that a motion for judgment notwithstanding the verdict should be denied if defendant's evidence makes out a prima facie defense (Hadden v. Fifer, 339 Ill. App. 287, 89 N.E.2d 854), we cannot agree with the contention of appellant that such prima facie defense was made out in the instant case. The record shows that several witnesses testified as to the intoxication of defendant, Frank Emery; that defendant had no recollection of the conversation or events until the next morning; and that the witnesses who arrived at the scene of the accident, and the doctor who treated defendant at the hospital; specifically testified that he was intoxicated at the time.
[4] The question presented by plaintiff's motion was whether there was any evidence in the record which, when viewed in its aspect most favorable to defendant, fairly tended to prove a defense to the cause of action. (Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571, 576; Hadden v. Fifer, 339 Ill. App. 287, 291.) We conclude the record justified the court in finding there was no evidence of a defense in Coffman's favor and in granting the post-trial motion for judgment against Coffman, notwithstanding the verdict and judgment in his favor.
Bibbs v. Dorsey, 341 Ill. App. 250; Martin v. Barnhardt, 39 Ill. 9; Faulk v. Kellums, 54 Ill. 188; Fray v. Nat'l Fire Ins. Co. of Hartford, 255 Ill. App. 209; Kelly v. Kelly, 346 Ill. App. 210; Aetna Plywood Veneer Co. v. Robineau, 336 Ill. App. 339; People v. Chicago, B. Q.R. Co., 306 Ill. 166. Moreover, under the Civil Practice Act, a motion for judgment non obstante veredicto may be made by either party. Section 68 (3), Supreme Court Rule 22; Farmer v. Alton Building Loan Ass'n, 294 Ill. App. 206; Hadden v. Fifer, 339 Ill. App. 287. [3] In the instant case the order granting judgment notwithstanding the verdict was on motion of plaintiff and by stipulation, but there is nothing in the order to indicate that it was intended to be a judgment in favor of Carr. If it be equally consistent to regard the order as one in favor of plaintiff, it could hardly be argued that it is an adjudication or finding that Carr was not guilty of the assault charged in the complaint.
Neither the trial court nor a court of review should weigh the evidence nor determine where the preponderance lies. If defendant's evidence makes out a prima facie defense plaintiff's motion for judgment notwithstanding the verdict should be denied. Hughes v. Bandy, 404 Ill. 74. To the same effect see Hadden v. Fifer, 339 Ill. App. 287. [3-5] In the present case in passing on plaintiff's motion for a judgment notwithstanding the verdict the evidence most favorable to defendant must be taken as true. There was evidence that the right door of plaintiff's automobile though partially open, left space sufficient for it to clear the left-front wheel of the milk wagon as it proceeded west. Since the evidence shows that the milk wagon moved in a straight line while the automobile stood still, and that the hub caps of the left-front and rear wheels were the same size and extended out the same distance from the wagon, the jury could reasonably infer that the door of the automobile was swung further forward immediately after it was cleared by the front wheel of the wagon, thus projecting the door into the path of the rear wheel.