Appeal by defendant from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the February term, 1950. Judgment affirmed. Opinion
filed May 16, 1950. Released for publication June 5, 1950.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
Defendant, Russell Brown, is appealing from a judgment of the circuit court of Winnebago county entered on a jury verdict awarding plaintiff, David Anderson, damages in the amount of $25,000 for injuries sustained in a collision between defendant's car and plaintiff's motorcycle.
The fundamental issues presented for our determination are whether the circuit court erred in denying defendant's motion for a directed verdict, and in submitting to the jury certain instructions defining wilful and wanton conduct.
From the record it appears that plaintiff and defendant, and their respective witnesses offered conflicting reports of the collision. According to the evidence of plaintiff and his witnesses, shortly before midnight on June 19, 1947, his friend Stanley Mura, and two girl friends left a root beer stand located on the west side of U.S. Route 51, about 300 feet south of Gardner street, near South Beloit, Illinois. Each couple was riding on a motorcycle, plaintiff driving one, and Mura driving the other. Plaintiff's motorcycle was equipped with headlights and taillights, which were all burning.
As they started to pull out of the driveway to proceed north on Route 51, Mura's motor stalled, but plaintiff proceeded onto the highway, after stopping some two feet west of the pavement to observe traffic in both directions. After noting only the reflection of some headlights beyond a low hill about a quarter of a mile to the south, which was to his right, plaintiff turned into the northbound traffic lane, with his motorcycle in low gear. When he was half way to the point where Gardner street extends into Route 51, plaintiff looked back and saw a car about a block behind. He signaled with his left arm his intention to turn left at Gardner street, and, while still in low gear, he slowed down to 10 miles per hour.
From the testimony of Mura and Maxine Pratt Brockman, who were waiting in the driveway of the root beer stand, it appears that defendant was traveling northward on Route 51 in his 1936 Ford car at about 75 to 80 miles per hour. He neither slowed down nor gave any warning as he approached plaintiff's motorcycle, but merely swerved his car to the left so that it was about half way over the black center line when it collided into the back end of plaintiff's motorcycle at a point about 100 feet south of Gardner street. After the collision, defendant's car apparently spun around twice and continued northward some 500 feet before it stopped.
According to plaintiff's testimony, as a result of the collision, plaintiff was thrown into the air, and landed on the west shoulder of the highway. He sustained numerous fractures and other injuries, which are not contested herein. The motorcycle was found lying in a north and south position, on its left side, a hundred feet south of Gardner street, with its wheels about two feet from the east edge of the pavement. Plaintiff crawled over and turned off the motor which was still in low gear.
Plaintiff also testified that the physical damage to the motorcycle indicates that the left rear taillight was pushed forward and under the left saddle bag, the straps on the left saddle bag were broken, the "buddy" footrest was pushed forward and broken, the left crash bar was bent forward, and the left handle bar was broken. This testimony was corroborated by the photographs. Plaintiff contends that the reasonable inference from the physical damage and circumstances is that the impact occurred at the left rear side of the motorcycle, and the force proceeded forward with considerable momentum.
In sharp contradiction, defendant and the occupants of his car testified that plaintiff pulled out onto Route 51 directly in front of defendant, without stopping to observe traffic, and at a speed of 45 miles per hour. Defendant claims that because plaintiff cut a wide semicircle to the left, defendant was obliged to turn onto the left side of the road and accelerate his speed in order to pass plaintiff, and that plaintiff was still turning to the left when he drove his motorcycle into the right side of defendant's automobile at the Gardner street junction. Defendant insists that the first point of contact between the vehicles was the left handle bar of the motorcycle striking the right front door of the car, and that after the collision the motorcycle fell on plaintiff, and defendant's car was stopped some 40 feet ahead.
An allegedly disinterested witness, who was the first person at the scene after the collision, refuted part of defendant's interpretation, by stating that the collision occurred about 100 feet south of the point where Gardner street extended to the highway; that defendant's car traveled some 500 feet from the point of the collision; and that no part of the motorcycle was lying on plaintiff at any time.
The jury resolved the conflicting evidence in plaintiff's favor, and returned a verdict for $25,000, on which the trial court entered judgment, after denying defendant's motion for a directed verdict. On this appeal defendant argues that he was guilty of no negligence or wilful and wanton conduct which could have proximately caused the accident; that plaintiff was guilty of contributory negligence as a matter of law; that the trial court erred in denying defendant's motion for a directed verdict, in altering plaintiff's 16th and defendant's 19th instructions defining wilful and wanton conduct, and in submitting these instructions together with plaintiff's instruction 17 to the jury.
Before a court of review can disturb the order of the trial court overruling a defendant's motion for a directed verdict, it must appear that there was no evidence in the record, viewed most favorably for plaintiff, together with all reasonable inferences therefrom, to support the verdict. (Sherwin v. City of Aurora, 257 Ill. 458.)
In support of his contention that the record is devoid of evidence of his negligence or wilful and wanton conduct, defendant argues that plaintiff's version of the accident is a physical impossibility, and that evidence contrary to known physical laws will be rejected. (People v. Bentley, 357 Ill. 82.) Defendant explains that inasmuch as the right front bumper and right front fender of his car project a substantial distance from the side of the car, it would have been impossible to have driven the car into the back end of the motorcycle, and have the handle bars dent the right front door without affecting defendant's right front fender and bumper, which he claims were undamaged. Therefore, defendant insists that the initial impact was between the left handle bar of the motorcycle and defendant's car door, and that the physical damage substantiates his contention that plaintiff was turning left at the time of the collision, and drove his motorcycle into defendant's car. Hence, defendant argues, plaintiff's evidence that he was proceeding north was impossible and entitled to no weight.
Close examination of all the physical circumstances, however, reveals other physical damage and factors which tend to substantiate plaintiff's theory that the back end of his motorcycle was struck first. The fact that the left rear taillight was pushed forward under the left saddle bag, that the straps on the left saddle bag were broken, that the "buddy" footrest was pushed forward and broken, ...