Appeal from the Circuit Court of St. Clair county; the Hon.
HAROLD R. CLARK, Judge, presiding. Judgment reversed.
JUDGE BARDENS DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 26, 1958.
This action was started by plaintiff to recover for personal injuries growing out of a collision between the cab owned by the Black and White Cab Company, and operated by William White as its agent, and a car, in which plaintiff was a guest, owned and driven by defendant Stuempler. The jury first returned verdicts of $17,000 against the cab company and White and $3,000 against Stuempler. The court refused to accept these verdicts and sent the jury back to reconsider; whereupon the jury returned a verdict against all defendants for the sum of $20,000. The court accepted that verdict and rendered judgment thereon. Post-trial motions were overruled. The cab company and William White did not appeal but defendant Stuempler brought the appeal to this court. Hereafter our reference to Stuempler will be as "defendant."
The complaint consists of two counts, the first count of which was directed against the cab company and William White only and charged ordinary negligence. The second count was directed against defendant only and charged wilful and wanton misconduct. The main contentions of defendant are that there is not sufficient evidence to support a verdict of wilful and wanton negligence; in the alternative, that the $3,000 verdict should be adopted; and, in the further alternative, that a new trial be granted because the verdict is against the manifest weight of the evidence and there was error in orally instructing the jury and in refusing to accept the $3,000 verdict.
Plaintiff Huber and the defendant Stuempler had been together most of the evening of July 23, 1955, from 7:30 P.M. on to the time of the accident. Just prior to the accident both men and Mrs. Stuempler were at the Morris Cafe in Belleville where they played shuffleboard until shortly before 1:00 A.M. on July 24, 1955. Plaintiff lived about eight blocks from the Morris Cafe and asked Stuempler to drive him home which Stuempler undertook to do. Plaintiff was riding in the front seat of defendant's Plymouth on the right side. Mrs. Stuempler was in the middle and defendant was on the left and was driving. They proceeded westerly along East "A" Street, an east and west black top or oil surfaced street, to Delaware Street. Delaware Street runs north and south and intersects "A" Street. As Stuempler approached Delaware Street and was about forty feet from the intersection, a cab driven by defendant White approached the intersection from the south on Delaware Street. A collision between defendant's car and the cab resulted; the left front of the car colliding with the right front of the cab and both vehicles ending up at the northwest corner of the intersection or just beyond that. From this collision plaintiff received the injuries complained of.
Count II above referred to was directed against defendant Stuempler only and charged wilful and wanton misconduct in two particulars, to-wit: (1) failure to keep a proper look out for cars, including the cab driven by defendant White; (2) driving the automobile at a speed greater than was reasonable and proper. Defendant was called as an adverse witness and after detailing the events of the evening he testified that his speed on "A" Street prior to approaching the intersection of Delaware Street was from 25 to 30 miles per hour; that it was dark at the time and that he had his bright lights on; that it had been raining hard but was raining gently at the time of the collision, but that the pavement was wet. Stuempler further testified that when he was forty feet from the intersection he saw the lights of a car coming from the south on Delaware Street and then saw the cab when it was about fifteen feet from the intersection; that he braked his car down to eighteen miles per hour and that the cab was slowing down and he thought it was stopping; that as he entered the intersection the cab skidded out in front of him and blocked the right of way; that he tried to swing to the right to avoid hitting the cab but was unable to miss the cab and hit it a glancing blow.
Thereafter the plaintiff testified. On direct examination he said that the Stuempler car was traveling 25 to 30 miles per hour prior to approaching the intersection. He also testified that he was awake and looking straight ahead but that he did not remember seeing the cab before the accident. On cross examination the plaintiff testified as follows:
"Q. As far as you observed Mr. Stuempler drove the car all right, didn't he?
Q. You had no occasion to make any complaint about the way he drove?
Q. And so far as you were concerned at the time this collision happened, and just before, Mr. Stuempler was driving his car carefully, wasn't he?
Q. You didn't make any complaint to him after you left Morris' tavern down to the time this accident happened ...