Appeal from the Circuit Court of Livingston county; the Hon.
HUBERT H. EDWARDS, Judge, presiding. Reversed and remanded with
JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 1, 1957.
Appellant brought suit in the Circuit Court of Livingston county as administrator of the estate of Irene Elizabeth Morris, deceased, for her wrongful death occasioned by the appellee and individually for damages and personal injuries.
Counts one and three of the amended complaint alleged ordinary negligence by the defendant causing the plaintiff's individual damage and personal injuries and the wrongful death of Irene Morris respectively. Counts two and four alleged wilful and wanton conduct on the part of the defendant causing the plaintiff's individual damages and personal injuries and the wrongful death of Irene Morris, respectively. Defendant answered the complaint and on these issues joined, a jury trial was had.
At the close of the plaintiffs' evidence, on defendant's motion for a directed verdict as to each and every count of the complaint, the court directed the jury to retire and return a verdict finding the defendant not guilty as to counts two and four. The court overruled the motion as to counts one and three. The jury at the court's direction returned a verdict finding the defendant not guilty as to counts two and four.
The jury at the close of all the evidence, argument, and instructions, returned a verdict for the plaintiff individually for $7,000 and as administrator for $3,000. Judgments on the verdicts were entered.
The court overruled plaintiff's motion for a new trial as to count one and overruled a like motion as to count three if defendant consented to an additur of $4,000 within thirty days, otherwise the motion for new trial would be allowed. The defendant consented to the additur and the court entered supplemental judgment as to Count Three reflecting the additur and overruled plaintiffs' motion for a new trial as to Count Three. Defendant tendered the amount of the judgments to the Clerk of the Court.
On February 22, 1957, this court on appellant's motion without objection on behalf of appellee dismissed the appeal as to the appellant individually.
Plaintiff-appellant contends for grounds of reversal that the trial court erred in: (1) directing a verdict for the defendant at the close of plaintiffs' evidence as to Count Four, concerning wilful and wanton conduct on the part of defendant; (2) ordering the additur increasing the verdict; and, (3) giving defendant's repetitious peremptory instructions. Plaintiff further asks that a new trial be ordered as to the question of damages only.
Evidence offered on behalf of the plaintiffs discloses that between 9:30 and 10:00 A.M. on a clear dry day, Arthur Morris, together with his wife and intestate, Irene Elizabeth Morris, and his ten year old daughter, Sharon, was driving eastward on Illinois Highway 17, a preferred highway, at a speed of approximately fifty miles per hour. At a point approximately 150 feet west of the intersection of Route 17 with Campus Road, Morris observed the defendant's automobile traveling in a northerly direction on Campus Road, whereupon he sounded his horn, slackened his speed, and moved over to the left. At that point defendant's automobile was emerging from behind a clump of trees.
Defendant, aged seventy-two years, was called as an adverse witness for the plaintiff and testified that he had traveled over that intersection for twenty years and that for several years a stop sign was located at the southeast corner of the intersection at a point approximately ten to twelve feet south of the eastbound lane of Route 17; that about forty rods back from the intersection he glanced in both directions for traffic, saw nothing approaching from the left, but saw a car to the right which passed the intersection before he stopped; that at a point about two car lengths south of the stop sign he stopped, saw nothing approaching from the west, but saw a car approaching from the east; that he stopped at this point so that he could see through the trees to the left; that he shifted to second gear and proceeded northward toward the intersection at about eight to ten miles per hour, observed another car approaching from the east at some distance; that he first observed plaintiffs' car after he passed the row of trees to the west of Campus Road, whereupon he slammed on his brakes, skidded three feet to a stop at a point about three feet onto the eastbound lane of Route 17; that at this point the impact occurred, the plaintiffs' car striking the front end of defendant's car; and that he did not come to a stop to see if traffic was approaching from the left from the time he proceeded from a point about two car lengths south of the stop sign until he applied his brakes and skidded.
Defendant further testified that he first observed the plaintiff's car when it was about 100 feet west of the intersection while he was six, eight, or ten feet south of Route 17, and that at a point just beyond the trees he could see a half mile down Route 17 to the west.
Plaintiffs' witness, Floyd Garrett, testified that he was driving west on Route 17 at a speed of between fifty and fifty-five miles per hour and that as he approached Campus Road he saw a car 100 to 150 feet south of the intersection traveling in a northerly direction; that approximately 250 to 300 feet west of the intersection he passed the Morris car traveling in an easterly direction, and that when he was ...