Appeal by defendants from the Circuit Court of Sangamon
county; the Hon. CLEM SMITH, Judge, presiding. Heard in this
court at the February term, 1952. Reversed and remanded. Opinion
filed February 20, 1952. Released for publication March 17, 1952.
MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
The plaintiff-appellee Carl Allen Rogers, Sr. filed a complaint in the circuit court of Sangamon county seeking to recover damages for personal injuries alleged to have been sustained by him in a collision between the automobile he was driving and an automobile driven by the defendant-appellant Frank Mason. Defendant filed an answer to the complaint, denying the material allegations of the complaint, and filed a counterclaim for his own personal injuries alleged to have been sustained in the collision. At the same time Julia J. Buchinger, an aunt of the defendant Frank Mason, who was the owner of the car being driven by the defendant, by leave of court intervened and filed a counterclaim against the plaintiff Rogers for damages to her car. The defendant Rogers filed his answers to the counterclaims in which he denied the material allegations.
An amended complaint was filed by the plaintiff Rogers, the first count charging Mason with negligence and the second count charging him with wilful and wanton misconduct. The counterclaims of both Mason and Buchinger consisted of two counts each; the first count charged Rogers with ten specific acts of negligence and the second count charged him with ten specific acts of willfulness.
At the close of the evidence motions for directed verdicts generally and as to specific counts, were overruled and the cases were given to the jury upon both the negligence and willfulness counts of the amended complaint and both the negligence and willfulness counts of the counterclaims.
A general verdict was returned in favor of the plaintiff Rogers and against the defendant Mason for $2,500 and "not guilty" verdicts upon the counterclaims of Mason and Buchinger.
Motion for judgment notwithstanding the verdicts, and motions to set aside the verdicts and for a new trial were denied and judgments were entered on the verdicts. The defendant Mason appealed to this court from both the judgment against him on the claim of Rogers and the judgment denying him recovery on his counterclaim; the intervenor Buchinger appealed from the judgment denying her recovery on her counterclaim.
The facts of the accident revealed by the evidence showed that Mason, then aged 18, with a 1941 Chevrolet four-door sedan borrowed from his aunt, Julia J. Buchinger, had that evening driven to Cantrall, Illinois, where he picked up some friends and they all attended a basketball game at Athens, Illinois. After the game they had a milkshake and spent some time in Sherman, visiting. Mason took his companions home and started to drive toward his home alone, on Route 29, also known as Walnut Street Road. There were spots of fog which became heavier toward the scene of the collision.
The highway in the vicinity of the accident is 20 feet wide and is a two-lane concrete pavement that makes an "S" curve downhill, then makes a long, gradual curve to the south. It straightens out and runs level for a mile or so on up a built-up embankment or levee. About a quarter of a mile south of the last curve, the highway crosses a concrete bridge and about 300 yards farther south, crosses a steel bridge which spans the Sangamon River. An 8 to 10 foot shoulder is on either side of the road. It was at a point about 300 yards north of the concrete bridge that the cars collided while they were being driven in opposite directions.
Rogers testified that he was driving his wife and six-months-old baby home from Springfield where they had been Christmas shopping, and had attended the theatre. He testified that his lights and brakes were in good working order. This, however, is disputed by other witnesses. Rogers also said that it was foggy and he was driving north at about 20 miles per hour. As he approached the Sangamon River he saw two cars coming around the curve toward him about one-half mile away; that from then until the accident he could see the first car but could not see the second one as it was being shielded by the car in the lead. Rogers testified that he was passing the first of the two cars which were coming toward him and as his radiator was even with the front of the first car, the car being driven by Mason turned out from behind the car which Rogers had just met, to the extent that the left-front wheel to the left door of the Mason car was 3 or 4 feet over the center line of the pavement, but that the balance of the car and the right-front wheel were in the proper lane. Rogers says he was 18 to 20 inches from the center line of the pavement and on his own proper side of the road and was in the process of turning to his right when the collision occurred. The first of the two automobiles, or the one ahead of the Mason car, was being driven by Tom Vredenburg and contained five other young people as passengers.
Of the six occupants of the Vredenburg car, four of them testified that Rogers was driving with only one light burning on his vehicle, and three of them knew that Mason was directly in back of their car. Mary Lou Rogers, wife of the plaintiff, was injured and remembered nothing about the accident.
Mason called Edward Crenshaw as a witness and he testified that on the night before the accident he had driven the Rogers car and that the headlights were so bad that he used a flashlight to see the road, and the brakes had to be pushed to the floor to stop; that the lens on the right headlight was out and the reflector was corroded and loose, causing the light to flicker and that the left lens was also cracked and the reflector corroded. Crenshaw testified that he called this to the attention of Rogers on the day of the accident. On rebuttal much of the Crenshaw testimony was disputed. As a witness, Mason testified that while following the car, the taillight disappeared in the fog which was then heavy and spotty and that while he was on his own side of the road (which he claims he knew from watching the center line of the highway) he suddenly saw a dim light which looked like a moon coming toward him on his side of the road and immediately the crash occurred.
Appellant lists 23 assignments of errors upon which he relies for reversal. Eight of the assigned errors deal with instructions, and the balance deal mainly with the contentions that the evidence was not sufficient to sustain a wilful and wanton count, and that the verdict was against the manifest weight of the evidence. The only contention made by the appellant that we deem it necessary to consider is that the trial court committed reversible error in giving certain instructions to the jury.
Defendant complains of the giving of Instruction No. 19 offered by the plaintiff and given by the court, which is as follows:
"The burden of proof as to the Counterclaim in this case is on the Counter-Plaintiffs, Frank Mason and Julia Buchinger, and not upon the Counter-Defendant, Carl Allen Rogers. Before the Counter-Plaintiffs can recover against the Counter-Defendant, Carl Allen Rogers, it is required that the Counter-Plaintiffs must prove by a ...