Appeal by defendant from the Circuit Court of Winnebago
county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Heard in
this court at the May term, 1951. Reversed and remanded with
directions. Opinion filed September 14, 1951. Rehearing denied
December 13, 1951. Released for publication December 13, 1951.
MR. JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 13, 1951
Originally, the complaint in this case consisted of two counts. The Illinois National Bank and Trust Company, Administrator of the estate of Lyle G. Yardley, deceased, was the defendant in Count One, and Edwin Heinzeroth was the defendant in the second count. At the conclusion of the evidence offered on behalf of the plaintiff, the suit was dismissed as to the defendant, Edwin Heinzeroth, and Count Two was withdrawn from the consideration of the jury.
Count One alleged that on May 8, 1950, Lyle G. Yardley operated an automobile in a southerly direction on Kilburn Avenue Road about four miles north of Rockford; that plaintiff's intestate, Joseph R. Jacobs, was a passenger in this automobile, but had nothing whatsoever to do with the driving or operating of said automobile and had no control or direction over its operation or any control or direction over its driver, Lyle G. Yardley; that Lyle G. Yardley in driving said automobile in which Jacobs was a passenger committed one or more of the following acts or omissions, amounting to wilful and wanton misconduct: (a) drove at a speed greater than was reasonable and proper having regard to the traffic and at a speed which endangered persons rightfully on the highway; (b) drove said automobile at a dangerous rate of speed; (c) drove said automobile on the east half of the highway which would be the left side as he drove south; (d) failed to keep said motor vehicle under proper control and (e) operated said automobile in a wilful and wanton manner. The complaint then charged that as a result of said wilful and wanton misconduct on the part of Yardley, the car in which plaintiff's intestate was riding came in contact with a northbound car being driven by said Edwin Heinzeroth and as a direct result of said wilful and wanton misconduct of Yardley, Joseph R. Jacobs was injured and died the same day. The complaint averred that plaintiff's intestate and his next of kin were at the time of the accident and at all times in the exercise of due care and caution for the safety of the said Joseph R. Jacobs and averred that neither he or his next of kin were guilty of wilful and wanton misconduct at the time of the accident or at any time mentioned in the complaint.
The answer of the defendant denied all the charges of wilful and wanton misconduct; denied that Yardley was driving the car; denied that Jacobs was riding as a passenger; denied that Jacobs had no control over the driver or over the operation of the car and denied the averments that plaintiff's intestate and his next of kin were in the exercise of due care and caution for the safety of plaintiff's intestate and denied that plaintiff's intestate and his next of kin were not guilty of wilful and wanton misconduct. Upon a jury trial of the issues, the plaintiff recovered a verdict for $7,500 and after motions for judgment notwithstanding the verdict and for a new trial were overruled, judgment was rendered upon the verdict and the defendant, Illinois National Bank and Trust Company, administrator of the estate of Lyle G. Yardley, appeals.
The evidence discloses that Kilburn Avenue Road is a concrete-paved highway eighteen feet wide which runs northwesterly from Rockford. Upon the trial, the parties stipulated that, for clarity, Kilburn Avenue Road would be considered as running east and west. Tate Road is a country road running north from Kilburn Avenue Road, and its intersection with the Kilburn Avenue Road is about one-half way up a long hill which rises toward the west. The top of this grade is about 550 or 600 feet west of the Tate Road intersection. About 10:00 o'clock on the evening of May 8, 1950, Edwin Heinzeroth, thirty-seven years of age, was driving a 1949 Ford automobile in a westerly direction on Kilburn Avenue Road. He was accompanied by his cousin, Theodore Heinzeroth, the owner of the automobile, who sat in the front seat on the right-hand side of the car. When the Heinzeroth car had reached a point approximately halfway between the crest of the hill and the Tate Road intersection, a car driven by Ralph Kindell in its proper traffic lane passed him going east. Mr. Kindell intended to turn left, that is, to the north, on the Tate Road. Mr. Heinzeroth was called by counsel for plaintiff as an adverse witness and testified that he first observed the lights of the Yardley car as it came to the crest of the hill; that it was then between 575 and 625 feet ahead of him in the middle of the highway and continued in an easterly direction bearing to the left and into Heinzeroth's lane of travel; that he, Heinzeroth, turned his car to its right and at the time of the collision was straddling the right edge of the pavement; that during the time the Yardley car traveled 375 feet he, Heinzeroth, traveled between 200 and 250 feet; that he did not see the occupants of the Yardley car as it came toward him; that the collision was head-on and at that time about one-half of each car was on the right dirt shoulder of the highway. The testimony of this witness as abstracted continued: "Don't know what happened to either car after the accident. Would say other car going faster than I; don't know how much; would estimate 15 or 20 miles per hour; don't think it changed speed after I saw it. Looked like it skidded a couple of times. Think it was straight at time of collision; think cars hit only once; we were going between 50 and 55 at time of collision. When I was at bottom of hill I first saw reflection of lights over top of hill. Half-way up, near Tate Road first saw headlights. In a couple of seconds saw second set of headlights. Collision occurred possibly two seconds after that. First car (driven by Ralph Kindell) going pretty slow and seemed to be slowing down. I was always in proper lane. Cars at least half off of pavement at time of impact. Collision about halfway from Tate Road to top of hill. First aware two cars approaching me when I saw second set of headlights. When I saw car, took my foot off gas and turned wheel to right. Couple of seconds intervened before the crash."
Ralph Kindell, accompanied by his wife, was returning to his home on Tate Road and was driving a 1949 Ford automobile in an easterly direction on Kilburn Road just before the collision took place and intended to turn north into Tate Road. Mrs. Kindell testified that she did not see the cars before the accident but just heard the crash. Mr. Kindell testified that he was driving 35 to 40 miles per hour when he reached a point 350 or 400 feet west of Tate Road; that he observed in his rear mirror the headlights of a car coming from the west and also observed the headlights of the Heinzeroth car approaching him from the east. He testified: "the car from the west seemed to be coming fast and I swung off on the shoulder. I was about 300 feet east of the crest of the hill when I first noticed car behind me. Just driving along, glanced in mirror, noticed light and saw car coming over grade. It was on south side of the highway going east. I looked down the road and seen this other car (the Heinzeroth car) coming and it seemed to be on its own side of the road and I looked back in the mirror to see what the other car was doing and it was right on top of me and I turned off on the shoulder and drove about one hundred feet on shoulder and stopped 250 or 300 feet west of Tate Road. Car coming from the east (Heinzeroth car) was at Tate Road when I first saw it. It was on the north side of road. After it passed me I heard a crash. I estimate it was a matter of seconds after it passed me when I heard crash. Seems I heard crash as soon as I got on shoulder. Last time I saw car behind me it was going east on south side of highway. It looked like he was coming right straight behind me. Did not see it turn from south to north half. Estimate it was about 100 feet behind me last time I saw it. Heard no horns or brakes. Estimate west bound car going 50 miles an hour. Have no way of knowing how fast car from west was being driven. Estimate around 80 miles and hour . . . Had not seen lights of that car coming behind me at any time before I got to crest of hill. Was down over crest of hill aways when I saw lights coming up behind. Never did see that car on highway except on south side. Didn't see who was in it at any time."
After the collision, the Yardley car came to rest on its right side partially on the west traffic lane of the pavement and partially on the dirt shoulder to the north and headed south. The generator was found on the south side of the highway 140 feet west and the motor was found 100 feet west of the Yardley car. The Heinzeroth car was on its wheels entirely on the dirt shoulder on the north side of the pavement headed northwest, parallel with the pavement and 9 or 10 feet from the edge of the pavement and just north of the Yardley car. Both cars were approximately 200 feet from the Tate Road and 300 feet from the crest of the hill. A black track mark indicated that a portion of the Heinzeroth car had traveled some seventy feet on the north dirt shoulder before the collision.
The bodies of both occupants of the Yardley car were found in the bottom of the wreckage. The body of Yardley was on top of the body of Jacobs. A wrecker came and when the car was hoisted to an upright position, the body of Yardley fell to the left of the body of Jacobs and was behind the driver's wheel and the body of Jacobs was beside him in the front seat.
Joseph G. Jacobs testified that he was the father of Joseph R. Jacobs; that he last saw his son alive about 8:00 o'clock of the evening of the accident; that Lyle Yardley and his son were friends, mutually interested in music; that Joseph, the son, was a senior in high school, 17 years of age, had always lived at home, weighed 150 pounds and was 5 feet 8 or 9 inches tall at the time of the accident; that after school and on Saturdays he was employed at a grocery store, played a saxophone and clarinet in the orchestra, had no physical disability, was not quick in movements but careful, got passing grades in school, helped around the house and was obedient.
J.R. Guinn testified that he operated a grocery store in Rockford; that plaintiff's intestate, Joseph R. Jacobs, worked for him eight hours on Saturdays and on other days from 4:00 to 6:00 o'clock; that for his services he received sixty cents an hour; that on May 8, 1950 he worked until six o'clock; that he was prompt, steady, quick in mental processes, but slightly on the slow side in his movements; that he was a courteous, satisfactory employee, appeared in good health and had no impairment when he walked.
William Latham and Lester Krug each testified that they arrived at the scene of the accident shortly after it happened; that they observed the position of the cars and looked into the wreckage; that the Yardley car was turned on its right side and they observed the position of Yardley's body, and did not know another body was underneath Yardley's until the car was uprighted.
It is insisted by counsel for appellant that the verdict is based upon conjecture and surmise; that appellee failed to prove by a preponderance of the evidence that appellant's intestate, Lyle Yardley, was driving the car at the time of the accident; that the record does not show that Joseph R. Jacobs was free from wilful and wanton misconduct which contributed to his death and that, if Lyle Yardley was driving the car at the time of the accident the evidence fails to show that he was guilty of wilful and wanton misconduct.
Counsel for appellee concede that there is no direct testimony found in the record to the effect the Lyle G. Yardley was driving the 1939 Ford automobile at the time of the collision but call our attention to the evidence which discloses that after the accident the car in which Yardley and Jacobs were riding turned over and came to rest on its right side; that the body of Jacobs was on the bottom fully covered by the body of Yardley; that the arm of Jacobs was crushed, while the arms of Yardley had nothing wrong with them except some scratches; that when the car was turned back on its wheels, Yardley's body fell into the driver's seat underneath the steering wheel and the body of Jacobs fell into the seat to the driver's right. These circumstances, insist counsel for appellee, were sufficient to warrant the jury in concluding that Yardley and not Jacobs was driving the car at the time of the collision. Counsel for appellant, however, argue that the effect of the natural forces aroused by this collision tangled the bodies of Yardley and Jacobs into the positions testified to by the witnesses ...