Appeal by plaintiff from the Circuit Court of Macon county;
the Hon. CHARLES E. KELLER, Judge, presiding. Heard in this court
at the February term, 1950. Reversed and remanded. Opinion filed
March 3, 1950. Released for publication March 29, 1950.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
The plaintiff appellant, hereinafter called plaintiff, appeals from an order overruling plaintiff's motion for a new trial following a jury verdict of not guilty in a negligence action for injuries suffered when a truck of the defendant appellee, hereinafter called the defendant, struck the plaintiff, a pedestrian. In the first trial the jury did not agree and the case was retried.
The accident occurred about 8:00 p.m. on April 15, 1947. Cerro Gordo street in the City of Decatur is a public highway running generally in an easterly and westerly direction. It is paved and about 40 feet wide, with sidewalks about six feet in width on either side of the street. Within the block where the accident happened was a driveway about 30 feet wide, running northerly from Cerro Gordo street and across the northerly sidewalk.
Robert Booker, an employee of the defendant, was driving its three-quarter ton truck in the course of his employment. The truck was equipped with a rear-view mirror and spotlight, mounted on two separate arms on the left side, above the door hinge on the cab, the rear-view mirror protruding from the cab about one foot. It was raining. The truck was proceeding easterly on Cerro Gordo street when it made a left turn to the north and entered the driveway. The speed was about 20 miles per hour while traveling on Cerro Gordo street, but was slowed down to from five to eight miles per hour as the truck entered the driveway. Booker testified that as he drove he was looking in front of the truck, and that as he entered the driveway he did not see anyone on the east of the driveway or on the sidewalk immediately east of the driveway. As the truck was crossing the sidewalk he heard a noise coming from his left side and saw a black object go by the window. Booker stopped and found the plaintiff lying by the left back tire and about one foot to the west of the left rear wheel. He did not see the plaintiff before the collision.
The injuries to the plaintiff included a rather large laceration above the left eye that required about 15 stitches to close. X-rays revealed a fracture of the left side of the skull, running from well back of the left ear up over the head and down toward the nose. The plaintiff was unconscious until he arrived at the hospital.
The pleadings include a complaint with two counts.
Count I is a general negligence count, and Count II alleged wilful and wanton misconduct.
In addition to an answer the defendant alleged the following affirmative defense to each count: That the plaintiff walked into the side of the defendant's truck and in so doing did one or more of the following:
(a) Wilfully and wantonly walked into the side of the truck;
(b) Wilfully and wantonly walked along the said sidewalk in such an intoxicated condition that he was unable to control his acts;
(c) Wilfully and wantonly failed to keep a lookout in the direction he was going;
(d) Wilfully and wantonly conducted himself with a conscious indifference to the surrounding circumstances so as to exhibit an utter disregard for his own safety.
The parties have opposite views of the direction the plaintiff was walking. They agree that he was walking on the sidewalk on the northerly side of Cerro Gordo street, but the defense argues that he was going in an easterly direction, while the plaintiff testified that he was walking westerly. Neither Booker nor any of the defendant's witnesses saw the direction the plaintiff was walking prior to the accident. To prove its contention that the plaintiff was walking easterly, the defendant relies on the fact that there was a dent in the spotlight and the rear-view mirror was out of focus. This equipment was on the left side of the truck.
The plaintiff claims that prior to the accident he used the telephone at the Wabash Depot to call his employer about working the next day, and after having done so he started walking to his home by going westerly on the north sidewalk of Cerro Gordo street, and that he ...