Appeal from the Circuit Court of Ogle county; the Hon. LEON A.
ZICK, Judge, presiding. Affirmed in part and reversed in part.
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
This action was brought to recover for personal injuries sustained in a two-car intersection collision. Plaintiff was riding as a guest in an automobile driven by one Patrick L. McGann, who, with the other two passengers in the McGann vehicle, sustained fatal injuries. The other vehicle involved was owned by the defendant, Thomas Haan, and driven by his minor son, the defendant Wayne T. Haan.
Count I of the Amended Complaint was a willful and wanton count against the administrator of the estate of Patrick L. McGann, deceased. Count II was a general negligence count against the defendant, Wayne T. Haan. Count III was directed against defendant, Thomas Haan, alleging negligence in permitting his automobile to be driven by his fifteen year old son who was without a driver's license and otherwise an incompetent driver. Count IV asserted that as the proximate result of the concurrent willful and wanton misconduct of the administrator's intestate and of the negligence of the defendants Haan the plaintiff was injured.
Answers by the defendants denying the material averments in the Amended Complaint were filed, and the case was tried before a jury. The jury returned a verdict of not guilty as to the defendants Haan and a verdict of $15,000 for the plaintiff against the defendant, Neil M. Foulds, administrator of the estate of Patrick L. McGann, deceased. Judgments were entered on the verdicts. The plaintiff and the defendant administrator each filed post trial motions which were denied. Thereafter the defendant administrator appealed to this court from the judgment against him and plaintiff has filed her cross-appeal from the adverse judgment against her and in favor of the defendants Haan.
A recitation of the facts in evidence is necessary for an understanding of the issues before us.
On March 23, 1957, at about 10:30 p.m., plaintiff, Mrs. McCormack, a sixty-four year old widow, was riding as a guest in the right front seat of a car driven by her brother-in-law, Patrick McGann. Mrs. McGann and a Mrs. Abel were riding in the rear seat. The car was traveling south on the Lowell Park Road (also referred to as the Dixon-Mt. Morris Blacktop Road) and was approaching the intersection of the latter road with the Polo Road (also referred to as the Pines Road) in Ogle County, Illinois.
The main traveled portion of each road was 20 feet in width. The weather was clear and the pavement dry. The grade of the Polo Road in the vicinity of this intersection ran on an upgrade from east to west. The northeast corner of the intersection was built up with a store and other structures. The Polo Road was a preferential highway, entrances to which from Lowell Park Road were controlled by stop signs. The stop sign on the northwest corner required southbound traffic to advance south of the sign in order to have a clear view to the east and west. According to plaintiff's testimony, when the McGann auto reached the intersection, McGann came to a stop a little beyond the stop sign, and after plaintiff looked to her right or the west and reported "clear right," she saw her brother-in-law look left and then pull out onto the Polo Road at a speed of about 5 miles an hour. When the McGann vehicle had proceeded to a point where only its rear wheels were in the westbound lane of the Polo Road, it was struck by the front of a westbound vehicle driven by defendant, Wayne T. Haan, which neither the plaintiff nor evidently her driver had seen. The speed of the Haan car was fixed at 60 to 65 miles per hour by the witnesses. The lights on both cars were on.
The Haan car had four occupants in addition to the driver. Three of the four young men who were passengers testified. One of the young men testified that the McGann car proceeded through the intersection very slowly, while another testified that the McGann vehicle was traveling at the same speed as the Haan vehicle, that is, 60 to 65 miles per hour. One passenger in the Haan auto stated that he did see the McGann car hesitate at or near the stop sign but the other two occupants were unable to say whether it changed speed or stopped. In general, the testimony of the three teen-age occupants of the Haan car is conflicting and, therefore, the testimony of the plaintiff, the only other occurrence witness, assumes considerable importance. Plaintiff testified at considerable length, but the substance of her testimony was that her host stopped south of the stop sign, that plaintiff looked to the right and advised "clear right," that she saw Mr. McGann look to his left, that he proceeded into the intersection at around 5 miles an hour whereupon the McGann car was struck by another vehicle, and that plaintiff did not see the Haan auto or any headlights prior to the collision.
Count I of plaintiff's Amended Complaint alleged four acts of willful and wanton misconduct upon the part of defendant administrator's intestate, Mr. McGann: (a) failure to stop before entering a preferential highway, (b) failure to keep a proper lookout for traffic, (c) entering a preferential highway before first ascertaining whether it was safe to do so, (d) failure to yield the right of way to the Haan vehicle when he knew or should have known that such failure would result in a collision.
Upon cross-examination of plaintiff by counsel for defendants Haan, the following testimony was elicited:
"Q. Now, you have sued Haans and, I believe Mr. Gunner [counsel for the defendant administrator Foulds] referred to this in this case today, Neil M. Foulds, as administrator of the Estate of Patrick L. McGann, deceased, is that correct?
"Q. Along with my two clients; and you did file a Complaint, that is correct, is it not?
"Q. And you did allege in your Complaint against Patrick L. McGann, in other words, your allegations against Patrick L. McGann, who was the driver of the car in which you were riding, in paragraph 7, subparagraph a, that Patrick L. McGann failed to stop his said automobile at the entrance to Polo-Oregon Blacktop Road before entering the aforesaid intersection, ...