Appeal by plaintiff from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the May term, 1950. Reversed and remanded. Opinion
filed October 20, 1950. Released for publication November 8,
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
This case comes to us from the circuit court of Winnebago county wherein a judgment was entered upon a verdict for the defendant in bar of action and for costs. The plaintiff, Sadie Rees, in this proceeding sought damages from the defendant, Thomas Spillane, which she sustained as a result of being struck by an International wrecker owned by the defendant, and operated by his agent, Bruce Veitch. The wrecker of the defendant, at the time of the occurrence in question was propelling an automobile which was being driven by George Patton, who was also made a party defendant.
At the conclusion of all the evidence, on motion of the plaintiff, defendants Bruce Veitch and George Patton, were dismissed out of the case, and this appeal therefore lies only as to defendant Thomas Spillane.
This cause was tried once before, resulting in a general verdict finding the defendant, Thomas Spillane, guilty, and assessing the plaintiff's damages in the sum of $5,000. The jury in that proceeding, in answering special interrogatories submitted to them, found that defendant Veitch was acting as an agent of defendant Spillane, and that the accident occurred while he was operating within the scope of his employment. They also found that the plaintiff, before and at the time of the accident, was in the exercise of due care for her own safety, and that defendant Spillane was guilty of wanton and wilful misconduct. The court set aside the results of that trial, thus necessitating the present proceeding now under consideration.
There were two counts in the plaintiff's complaint, the first charging ordinary negligence, and the second, wanton and wilful misconduct. From a factual standpoint, it is alleged in both counts that on October 6, 1947, the plaintiff was crossing Jefferson street in the City of Rockford, walking in a northerly direction at the east side of its intersection with Winnebago; that both of said streets are public highways, Jefferson street running in an east and west direction, and Winnebago in a north and south direction; that said intersection is a closely built business and residence portion of the city; that on the date in question, the defendant Spillane, by his agent Bruce Veitch, was driving an International wrecker in an easterly direction along Jefferson street, approaching and crossing the intersection with Winnebago street; and that the defendant struck the plaintiff while she was in the exercise of due care, and in doing so, was guilty of several acts of negligence, including speed, defective brakes, failure to keep proper lookout and to give notice. As the result thereof, she suffered a fracture of the left femur, and expenses in the sum of $771.
At the conclusion of the plaintiff's case, the trial court directed a verdict finding the defendant "not guilty" on the negligence count. It was his view that the plaintiff was guilty of contributory negligence as a matter of law, and allowed the case to go to the jury on the wilful and wanton count. At the request of the plaintiff, there was submitted to the jury two special interrogatories. The first resulted in a finding by the jury that the plaintiff was guilty of wilful and wanton misconduct that contributed proximately to cause the injuries complained of; and the second, that the defendant, Spillane, was not guilty of wanton and wilful misconduct.
In as much as the propriety of the court's action in granting defendant's motion for a directed verdict is questioned, it becomes appropriate, for the purposes of the opinion, for us to set forth the factual situation rather fully. Ruby Moeller testified that she talked to the plaintiff, Sadie Rees, just a few minutes before the accident, which was between 7:45 and 8 o'clock p.m. on October 6, 1947. She said that the plaintiff proceeded north across Jefferson street in a straight line, parallel with the east side walk of North Winnebago street, and that when Mrs. Rees had just crossed the middle line of Jefferson street, she heard the screeching of brakes and saw Mrs. Rees lying on the pavement; that there was a STOP sign, not an electric sign, located at the southeast corner of Winnebago and Jefferson streets. Ray Anderson, the second witness, was a member of the Rockford police force who appeared at the accident soon after its occurrence. He testified that West Jefferson street was forty-eight feet in width; that it was planned for a two way traffic, and there was a painted mark in the center of the street; that upon his arrival at the scene, he found a 1936 International wrecker and a second vehicle, an automobile which was not actually involved in the collision; that both cars were facing east and sitting just past the east side of the intersection of the two streets. He further testified that the driver of the wrecker pointed to a spot twenty-one feet north of the south curb of Jefferson street and eleven feet east of the east curb of Winnebago street as the point where he struck the plaintiff.
George Patton, the driver of the vehicle being propelled, said he saw the plaintiff start north across the street, but that he was unable to stop his car so swerved to the north to avoid striking her. He further said that the driver of the wrecker told him that he did not see Mrs. Rees until just before the impact because his view was obstructed by the car he was pushing.
Charles Berve, who also was a police officer, testified that he had investigated the accident; that in doing so, he talked with Bruce Veitch, who stated that he did not see the plaintiff come out from the curbing and that he did not see her until he struck her with the left front bumper of the wrecker.
The plaintiff, a lady sixty-five years of age, testified that just prior to the accident she had talked with witness Moeller; that as she was proceeding on her way, she stopped at the south curb, looked east and west, and while walking across Jefferson street, she reached a point three feet north of the painted stripe; that she had seen no car until they were right upon her; that she saw the car that swerved to the north and just missed her, and that she heard no signals of any kind, and there were no headlights on the first car. She further testified concerning her injuries, hospitalization, and expenses, which has no bearing upon the issues presented on this appeal.
George Patton, who was one of the original defendants, was called under section 60 [Ill. Rev. Stat. 1949, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060]. He testified that on the night in question, he was operating a Beacon Continental which was being pushed by the defendant by his agent, Bruce Veitch; that both vehicles were traveling near the center line of Jefferson street, and that he swerved north to miss the plaintiff, who at the time was at the center line. He further testified that he did not sound a horn on his car as he approached the intersection, and when he first saw the plaintiff walking across the street, for the reason his car was not equipped with a horn that would work. He also testified that the wrecker did not sound a horn, and that he, Patton, did not apply the brakes as his car had no brakes.
Bruce Veitch, likewise, was called under section 60. He testified that, on the night in question, he had forgotten his tow chain, and consequently was called upon to push the Beacon Continental being driven by George Patton; that he gave no signals, and did not diminish his speed as he approached the intersection of Winnebago and Jefferson streets; that he did not see the plaintiff until he was within eight feet of her, and at the time of the impact she was two to four feet south of the center line, and that in endeavoring to pass to the south of her, the left side of the bumper of his wrecker struck her. He further said that the condition of his brakes was such that when the wrecker was being operated at a speed in excess of ten miles per hour it would slide quite a bit before stopping. Veitch also testified that he was probably half a foot or a foot to the north of the center line of Jefferson street, prior to the time that he swerved south in an effort to avoid striking the plaintiff. (Veitch's testimony.) On cross examination of Veitch, the following occurred: Question: "So that whether you went over a little north of it or not you couldn't actually state of your own knowledge?" Answer: "No, I couldn't."Question: "So it is possible you might have been a little bit over?" Answer: "Maybe a half foot or a foot."
James P. Freeman was the only witness called on behalf of the defendant. He was sitting in an automobile on Winnebago street just south of Jefferson street. He testified that at the time he first observed the plaintiff, she was only about six feet north of the south curb, and that she then took a couple of steps and was struck; that this occurred when she was about ten feet out in the traffic; and that she was struck by the right front bumper of the wrecker. He further testified that there were lights on the truck which was traveling at 25 miles an hour; that when the wrecker struck the plaintiff, she went about four feet in the air; and that she was using a cane, and was shuffling along and from this he thought "she looked like she was half tight."
The first inquiry on this appeal that compels consideration is the action of the trial judge in sustaining defendant's motion for a directed verdict on the negligence count at the close of the plaintiff's case. The trial court was convinced that the defendants were extremely careless in the operation of their wrecker truck on the night in question. In passing upon the motion for a directed verdict, the court used this language, "With respect to the wilful and wanton count, there isn't any question in my mind but that there is sufficient evidence to go to the jury on the question of wilful and wanton conduct driving a car with reckless disregard for the safety of others. Here is an old car that was being pushed without brakes, without any way of stopping it, right down one of the main traveled streets in the ...