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Kunz v. Larson

AUGUST 12, 1957.

ANDREW KUNZ, PLAINTIFF-COUNTER-DEFENDANT-APPELLANT,

v.

RAYMOND LARSON, DEFENDANT-COUNTERCLAIMANT-APPELLEE. CONRAD HAMMER AND HELEN HAMMER, PLAINTIFFS-APPELLEES,

v.

ANDREW KUNZ, DEFENDANT-APPELLANT, AND RAYMOND LARSON, DEFENDANT. MARTHA SILGE, PLAINTIFF-APPELLEE,

v.

ANDREW KUNZ, DEFENDANT-APPELLANT, AND RAYMOND LARSON, DEFENDANT.



Appeal from the Circuit Court of McHenry county; the Hon. WILLIAM M. CARROLL, Judge, presiding. Judgments in favor of Conrad Hammer, Helen Hammer and Martha Silge against Andrew Kunz affirmed. Judgments in favor of Raymond Larson against Conrad Hammer, Helen Hammer and Martha Silge in bar of their actions against Raymond Larson affirmed. Judgments in favor of Raymond Larson against Andrew Kunz are reversed and the cause remanded.

PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 2, 1957.

Following an automobile accident on April 17, 1954, Andrew Kunz filed his complaint in the Circuit Court of McHenry County on May 21, 1954, seeking to recover from Raymond Larson damages which he, Kunz, received to his person and property as a result of that collision. The defendant answered and filed a counterclaim which was amended. By this amended counterclaim Larson sought to recover from Kunz damages which he received to his person and property in this collision.

Thereafter on October 19, 1954, Conrad Hammer and Helen Hammer, guest passengers in the Andrew Kunz car at the time of the accident on April 17, 1954, filed their complaint against their host, Kunz, and Raymond Larson to recover damages for the injuries each of them received as a result of the collision. Thereafter and on December 23, 1954, Martha Silge, another guest passenger in the Kunz car, filed her complaint against her host, Kunz, and Raymond Larson to recover damages for personal injuries which she received as a result of the same collision. Answers were filed by the defendants and a reply to the counterclaim of Larson was filed by Counter-defendant Kunz. After the issues had been made up an order was entered upon the motion of Andrew Kunz, consolidating the separate causes for trial. Upon the trial the jury returned verdicts finding Raymond Larson not guilty in each case and finding Andrew Kunz guilty in all cases. Upon the counterclaim of Larson the jury assessed his damages at $27,000 and assessed the damages of Helen Hammer at $20,000, of Conrad Hammer at $1,000, and of Martha Silge at $5,000. Upon these verdicts judgments were rendered and Andrew Kunz appeals.

The evidence disclosed that about 7:15 o'clock on the evening of April 17, 1954, appellant, a retired landscape architect and gardener, sixty-four years of age, accompanied by appellee, Martha Silge, drove his automobile to the bus station at McHenry, Illinois, and there met appellees, Conrad Hammer and Helen Hammer, who were friends of Mrs. Silge. Mrs. Silge was sitting in the front seat at the right of appellant, who was driving the car, and Mr. and Mrs. Hammer were occupying the rear seat. Kunz drove from the bus station to Highway 31, a two-lane paved north and south highway, and turned into that highway and proceeded north. Highway 31 is a through highway. Wonder Lake Road is a black top road running in a northwest and southeast direction. It intersects but does not cross Highway 31 and Highway 31 is protected by a stop sign at the Wonder Lake intersection.

According to the testimony of appellant the accident occurred between dusk and dark about 7:15 in the evening. His car lights were on and when appellant arrived at a point about one hundred feet south of the intersection he turned on his directional signal indicating a left turn and stopped his car about ten feet south of the south edge of the Wonder Lake Road opposite a Wonder Lake Road sign. He testified that when he stopped he could see four hundred to six hundred feet ahead and observed another car coming from the north toward him and after it passed he looked again, saw no car coming, and started to turn to the left and had travelled forty or fifty feet from where he stopped and had crossed the center line of Highway 31 when Martha Silge called "look out Andy" and upon looking he then saw the headlights of the Larson car ten feet away and a moment thereafter the collision occurred.

Highway 31 was straight and fairly level and from the Wonder Lake intersection there was nothing to obstruct the view to the north for eight hundred feet and there was no traffic approaching the intersection on the Wonder Lake Road. The weather was clear and the pavement dry.

The record discloses that Mr. and Mrs. Hammer and Mrs. Silge were conversing with each other just prior to the collision; that appellant did not participate in the conversation and neither Mr. or Mrs. Hammer saw the Larson car until a moment before the accident and neither said anything to Mr. Kunz, the driver. Raymond Larson testified that he was driving south on Route 31 and that he first observed the Kunz car when he, Larson, was about one hundred fifty feet north of the intersection and the Kunz car, at that time, was about one hundred fifty feet south of the intersection. He estimated the speed of his car at approximately forty miles per hour and testified that he slowed down to thirty-five miles per hour, did not see any signal or light indicating a left turn but observed that the headlights on the Kunz car were burning and that his lights were on; that he was looking straight up the road and when his car had entered the intersection the Kunz car turned to the west directly in front of him as it attempted to cross his traffic lane.

Appellant contends (1) that there was no evidence sufficient to sustain the allegations of wilful and wanton misconduct made against him; (2) that appellees, Martha Silge, Conrad Hammer and Helen Hammer, were guilty of the same degree of misconduct as appellant; (3) that the trial court erred in giving an excessive number of instructions which were improper and prejudicial; (4) that the verdicts are manifestly against the weight of the evidence and those in favor of Martha Silge, Helen Hammer and Conrad Hammer were grossly excessive and unsupported by the evidence.

The rule is that where negligence and wilful and wanton counts are both submitted to the jury and a general verdict is returned in favor of the plaintiff, as was the situation here, the proofs must sustain the wilful and wanton counts. (Greene v. Noonan, 372 Ill. 286, 291; Green v. Yeager, 336 Ill. App. 312.) Whether an act is wilful and wanton is a question of fact and depends upon the particular circumstances of each case. (Bernier v. Illinois Central Railroad Company, 296 Ill. 464, 470; Meyers v. Krajefska, 8 Ill.2d 322, 328; Rohrer v. Denton, 306 Ill. App. 317, 324.)

Layton v. Ogonoski, 256 Ill. App. 461, was an action for personal injuries sustained by the plaintiff in a collision between an automobile in which the plaintiff was riding and an automobile driven by the son of the defendant. It appeared in that case that the driver of defendant's car was proceeding in an easterly direction on Missouri Avenue in East St. Louis, Illinois. He testified that he attempted to turn north, which was to his left, on Eighth Street and as he approached Eighth Street he looked ahead of him for westbound traffic on Missouri Avenue and saw no oncoming traffic. When he had partly completed his turn, he was struck by a westbound automobile in which the plaintiff was a passenger. The defendant contended that his conduct in turning left in front of oncoming traffic did not sustain the charge of wilful and wanton misconduct. In answering this contention, the court said (p. 468): "Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury if there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury. An intentional disregard of a known duty necessary to the safety of the person or property of another and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness such as charges the person whose duty it was to exercise care with the consequences of a wilful injury. Walldren Express and Van Company v. Krug, 291 Ill. 472. There was evidence from which the jury might have found that the driver of appellant's car suddenly turned north at Eighth Street in front of the car in which appellee was riding, without warning or signal indicating his intention to turn, when it was apparent that such a heedless and reckless act would be liable to lead to serious injury to life and property. Appellant's driver testified that before making the turn he looked and did not see the oncoming car in which appellee was riding. In view of the undisputed fact that the car in which appellee was riding had either arrived at Eighth Street or had proceeded across when appellant's driver undertook to cut the corner, the jury might reasonably infer that appellant's driver was not looking or giving proper attention to traffic coming from the east. It is peculiarly the province of the jury to determine under all of the circumstances whether appellant's driver was guilty of such a degree of negligence as could be said to be wilful or wanton. Failure to discover danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care may ofttimes be considered wilful or wanton negligence. Gannon v. Kiel, 252 Ill. App. 550."

Trennert v. Coe, 4 Ill. App.2d 166, was an action by a pedestrian to recover damages for personal injuries sustained by her as a result of being struck by an automobile driven by defendant as she was walking across a public highway at a point other than a crosswalk or intersection. In the course of its opinion this court cited and quoted from Brown v. Illinois Terminal Company, 319 Ill. 326, and said (p. 174): "Failure, after knowledge of impending danger, to exercise ordinary care to prevent it, or a failure to discover danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care — circumstances exhibiting a reckless disregard for the safety of others — constitutes wilful and wanton conduct."

In their argument counsel for appellant state that their client was a "model of caution as he drove from the bus station to the intersection where the accident occurred" and then continue: "For some reason Andrew Kunz failed to see the Larson car approaching from the north. . . . The worst that can be said of Andrew Kunz on the facts as here represented is that he knew, or in the exercise of reasonable care, should have known that the Larson car was approaching. . . . This is negligence only. Negligence and wilful and wanton misconduct are not the same." Counsel then conclude that "the most that can be reasonably inferred from the facts in this case is inadvertence on the part of Andrew Kunz."

We agree that there is a distinction between negligence and wilful and wanton misconduct, but under the authorities and all the circumstances as indicated by the evidence in this case (as said by the Supreme Court in Amenda v. Suits, 8 Ill.2d 598, 603), it is quite understandable that a jury and trial court, who had the opportunity of seeing and observing the witness, could reasonably conclude that appellant was guilty of wilful and wanton misconduct and the fact that reasonable persons might differ as to this conclusion or that a court of review in weighing the evidence might differ is of no consequence. Under the evidence found in this record the jury was warranted in finding that no reason appears why Kunz failed to discover the impending danger of a collision with the Larson car, or if he did have knowledge of such impending danger, ...


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