Appeal by defendant from the Circuit Court of Boone county;
the Hon. WILLIAM M. CARROLL, Judge, presiding. Heard in this
court at the May term, 1951. Reversed and remanded. Opinion filed
September 14, 1951. Released for publication October 2, 1951.
MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.
This case arises out of an intersection accident occurring August 30, 1949. A motor scooter operated by plaintiff's intestate and an automobile operated by the defendant collided at a street intersection in Belvidere, Illinois. The suit is brought under the Injuries Act for the alleged wrongful death of Clarence Countryman, age about fifteen years.
The complaint is in two counts. Count one charges the defendant with various negligent acts. Count two charges willful and wanton misconduct on the part of the defendant. It specifically charges that the defendant willfully and wantonly operated his automobile as follows: while under the influence of liquor; without proper observation of plaintiff's intestate; and at a high and dangerous rate of speed. Defendant denied all charges of negligence and willful and wanton misconduct.
The defendant's motion for a directed verdict at the close of all the evidence was denied and the case went to the jury on both counts. The jury returned a general verdict for $7,000. Defendant's motions for judgment notwithstanding the verdict and for a new trial were denied.
The verdict being general must be sustained by the count charging willful and wanton misconduct (Trumbo v. Chicago, B. & Q.R. Co., 389 Ill. 213).
It appears from the record that Clarence Countryman, age about fifteen years, was operating a motor scooter in a southerly direction on Caswell Street. Caswell Street is an improved street in a residential district and intersects Church Street. Defendant was operating his car in a westerly direction on Church Street. It was daylight. The weather was clear. Caswell Street is thirty-six feet wide. Church Street is forty feet wide. There is a decline on Caswell Street approaching the intersection from the north. There is an incline on Church Street approaching the intersection from the east. There is a hedge two and one-half feet to three feet high on the north-east corner of the intersection, said hedge being located to the north of the sidewalk running east and west on the north side of Church Street and to the east of the sidewalk running north and south to the north-east side of Caswell Street. The motor scooter was low and grey in color. The evidence is conflicting as to the point of impact but it appears that it occurred in the north-west quadrant of the intersection. Clarence Countryman, Jr., plaintiff's intestate, died as a result of the accident.
Two witnesses testified that they saw the accident: one testified for the plaintiff and one for the defendant. Looking first to the plaintiff's evidence: witness Verna Rice testified that she was driving east on Church and as she reached the intersection of Church and Caswell Streets, she was on the right or south half of the street and noticed both plaintiff's intestate and defendant approaching the intersection. She stopped her car. She said that the scooter was approaching from her left and was on its own side of Caswell Street about a foot or two west of the center line. It was coming down a small hill and seemed to slow down just before the impact. She had noticed defendant's car approaching from the east on Church Street, but had paid no particular attention to it. She had no opinion as to its speed but stated that it did not stop. The impact occurred and both the scooter and the plaintiff's intestate landed somewhere behind her. Neither the boy, the scooter, nor the defendant's car made any contact with her car. Defendant's car kept going for some distance behind her after the impact and before it stopped.
Chief of Police Stone testified that he arrived at the scene of the accident acting in his official capacity and that the Countryman boy had been removed but that the defendant was still present. Certain measurements were made including measurement from a pile of debris in the intersection, which was assumed to be the point of impact, to the defendant's car. This distance was 124 feet. This witness testified that there were no skid marks present and that he talked to the defendant. He said that he smelled alcoholic liquor on his breath but that he did not think the defendant was intoxicated but was nervous, shaky, and in a state of shock.
Walter Graness testified that he arrived after the accident occurred and that he observed the defendant was shaking a great deal and that he dropped his billfold when a policeman asked him for his driver's license.
Leo Knott testified that he was a police officer and arrived at the scene of the accident with Chief of Police Stone and helped take the measurements. He said that he saw the defendant and that he appeared dazed and shaky and dropped his billfold when asked for his driver's license. On direct examination he testified that he could not state whether or not the defendant was under the influence of intoxicating liquor.
The following witnesses testified on behalf of the defendant.
David Grimm, age twelve, testified as an occurrence witness for the defendant. This witness testified that he was about two hundred feet south of the intersection on the west side of the street on a porch. He stated that he was looking north and saw the motor scooter and watched it for about fifteen to thirty seconds as it came down the street. The scooter was going maybe under thirty miles an hour. The scooter got to the intersection, started to turn right and crashed into the fender of the defendant's car. Young Grimm first noticed the defendant's car when it was stopped at the corner and the defendant then started the car and was almost all the way across when the motor scooter crashed into him. He said that he did not see the Rice car.
Albert Petite testified that he arived two minutes after the accident occurred and that when he arrived the boy was lying about even with the sidewalk running parallel to the west edge of Caswell Street and about in the center of Church Street. He did not remember exactly where the scooter was lying but it was in the street and he helped drag it about twenty feet over to the curbing. He talked to the defendant at a distance of two feet and could smell no odor of liquor and in his opinion he was not intoxicated but was very normal.
Allan Clarke testified that he arrived three or four minutes after the crash. He went to the hospital and upon returning examined the defendant's automobile. There was a dent on the right-front fender about one foot long and two inches deep. This dent started at a point about four inches back of the headlight. Clarke drove the defendant home in the defendant's car at the request of the defendant's ...