Appeal from the Circuit Court of Rock Island county; the Hon.
GEORGE O. HEBEL, Judge, presiding. Reversed and remanded.
JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 9, 1958.
This is an action instituted in the Circuit Court of Rock Island County, Illinois, by William Madison and Peggy Madison, against James Wigal to recover damages to their automobile and for their personal injuries occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, James Wigal, in driving his automobile. The jury returned a general verdict for the plaintiff, William Madison, in the sum of $6,000, and a general verdict for the plaintiff, Peggy Madison, in the sum of $9,000, upon which the court entered judgment from which judgment this appeal is taken.
The complaint consists of four counts. Count I is based on negligence and prays for judgment in the sum of $5,000 for Madison's car and personal injuries. Count II is based on wilful and wanton misconduct and prays judgment for $5,000 for William Madison's car and personal injuries and $2,500 punitive damages. Count III is based on negligence and prays judgment in the sum of $10,000 for Peggy Madison for personal injuries. Count IV is based on wilful and wanton misconduct and prays judgment for $10,000 for Peggy Madison for personal injuries and $5,000 punitive damages.
The collision occurred on March 3, 1957, at 6:00 o'clock P.M., on Route 67, a four lane highway, running between Rock Island and Milan, Illinois. Route 67 is a four lane highway, straight and level with a double yellow line down the center. It was dark, but the weather was clear and the pavement dry. Plaintiff, William Madison, was driving his automobile in a southerly direction and his wife, Peggy Madison, was riding in the front seat next to him. Plaintiff was traveling 30 to 35 miles per hour, in the inside lane of traffic. The defendant was driving his automobile in a northerly direction at approximately 50 miles per hour. Plaintiffs contend that the defendant crossed over the center line into their lane of traffic, colliding practically head-on. The defendant testified that at the time of the collision, his car was on the wrong side of the highway but he claimed that the plaintiffs' automobile was also over the center line in his lane. The left front of both vehicles collided. Three State Patrolmen arrived at the scene shortly after the collision and they all testified that the debris and marks on the pavement indicated that the collision occurred in plaintiffs' lane of traffic. Both plaintiffs, plaintiffs' doctor and one State Police Officer, testified that defendant was in an intoxicated condition.
Defendant and one other witness testifed that he was not intoxicated and a bartender, who had served the defendant beer prior to the collision, testified the defendant was not intoxicated. The defendant testified that on the morning of the accident that he had two cans of beer at home. That afternoon he went to the Bringer Inn Tavern and had two more beers. He testified that he next went to the Village Tap Tavern and walked through that tavern without having anything to drink. He then went to the Sunset Tavern and had two more beers. The bartender at the Sunset Tavern testified that he was in the tavern at approximately 4:00 or 5:00 o'clock P.M., and then when he left the tavern he was not intoxicated and that he was in "good condition."
As a result of the collision, plaintiffs were hospitalized for a period of five days. Plaintiff, William Madison, suffered shock, a broken nose, lacerations to his knee, pulled ligaments and muscles to his hip and a bruised left hand and elbow. He missed six weeks work. He testifed that his hip still bothers him at times. Plaintiff, Peggy Madison, suffered shock, a dislocated left ankle, a fracture of the left fibula, and a complete dislocation of the left tibia. She wore a cast on her leg for six and one-half weeks. Plaintiff, William Madison's loss of wages was approximately $600 and his hospital bill $174.95. Plaintiff Peggy Madison's hospital bill was $109.20, their joint doctor bill was $213, additional household help $260, and $45 miscellaneous expenses. The plaintiff, William Madison, testified that his automobile, which was a total wreck, was valued at approximately $1,000 to $1,500.
The defendant contends that the trial court erred in giving plaintiffs' instructions numbered 5, 6, 7, 8, 9, 12 and 14, and in submitting the question of punitive damages to the jury and in the giving of a general form of verdict being plaintiffs' instruction No. 18.
The record before us reveals that the trial judge at the conference held to settle jury instructions went over plaintiffs' instructions one by one with the defendant's attorney, Mr. Kavensky, and the following occurred with reference to the plaintiffs' instructions numbered 5, 6, 7, 8, 9 and 14:
"The Court: Number Seven.