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Todd v. Borowski

APRIL 18, 1960.




Appeal from the Circuit Court of Will county; the Hon. JAMES V. BARTLEY, Judge, presiding. Reversed and remanded with directions.


The plaintiff-appellee, June W. Todd, Administrator of the estate of Karen R. Todd, deceased, brought suit, charging in one Count that the defendant-appellant Marvin R. Todd was guilty of wilful and wanton misconduct by reason of his acts as driver of an automobile in which the deceased, who was a daughter of the plaintiff, June W. Todd, and the defendant, Marvin R. Todd, was riding as a guest. Richard H. Borowski and his wife, Cecylia Borowski, were also defendants, under separate negligence counts, the Borowski car, owned by Richard H. Borowski and in which he was a passenger and driven by Cecylia Borowski, having collided with a car driven by the defendant Marvin R. Todd.

The Court directed a verdict in favor of the defendant Richard H. Borowski.

A special interrogatory, after due notice, was submitted by the defendant Marvin R. Todd and was given, without objection by the plaintiff. This special interrogatory was: "Was the defendant, Marvin R. Todd, operating his automobile in a wilful and wanton manner at and immediately prior to the collision in question?" The answer of the jury thereto was: "No."

The jury returned a general verdict against the defendants Marvin R. Todd and Cecylia Borowski in the sum of $25,000, and judgment was entered thereon, from which the defendant Todd appeals. The defendant Cecylia Borowski does not appeal. The Court allowed the plaintiff's motion to strike the special finding of fact, denied the defendant-appellant's motion for judgment in accordance with the special finding, and denied all post trial motions of all the parties.

The defendant-appellant contends that: the Court should have entered judgment for this defendant in accordance with the special finding of fact of the jury; the plaintiff's objections to the special interrogatory are not timely; the verdict is excessive and not in accord with the law and the evidence, and erroneous instructions on damages led to an excessive verdict and was prejudicial error.

The plaintiff-appellee contends that: the defendant-appellant Todd was guilty of wilful and wanton conduct; the special finding of fact on the special interrogatory was not fully irreconcilable with the general verdict against the defendant-appellant; the special finding of fact was against the manifest weight of the evidence; the judgment should be affirmed because it did not result from passion, prejudice or sympathy, and the amount of the verdict is peculiarly within the province of the jury.

A review of the evidence discloses that the defendant-appellant Marvin R. Todd, his wife, June W. Todd, the plaintiff-appellee administrator, a daughter, Karen R. Todd, age 9 1/2 years, the deceased, and a son, Perry, age 6 years, were on June 28, 1957, proceeding from Rockford, Illinois, where they had visited relatives, to Exeter, New Hampshire, their home. Marvin Todd was driving a 1951 two-door Chevrolet easterly on a crushed stone surfaced highway, the Plainfield-Lockport Road in Will County, Illinois. They reached the intersection of that highway and U.S. 66 about 10:00 o'clock a.m. They had started from Rockford about 7:30 a.m. Todd's headlights were on, but he was not familiar with the location. Visibility was not normal because of the weather. U.S. 66 extends north and south at that point of intersection and is composed of two concrete traffic lanes each 24' wide for traffic in either direction, separated by an intermediate parkway 30'-33' in width. The terrain is level, with no obstructions to the view north or south. Todd brought his car to a full stop at a stop sign located 10 to 15 feet west of the most westerly or southbound lanes of U.S. 66. Two or three southbound cars passed while his car was standing there. He looked north and south and, seeing nothing, started across the westerly or southbound lanes of U.S. 66 at a speed of 10 m.p.h. He could see a mile to the south. After crossing the southbound lanes of traffic and part of the intermediate parkway he reached the yield right-of-way sign placed about 10 feet west of the northbound traffic lanes. At that time Todd again looked to the south and observed a northbound automobile which he estimated to be one-fourth (1/4) to one-half (1/2) mile away. He said it was raining heavily. He was not able to estimate the speed of that vehicle, nor state in which of the two northbound lanes it was traveling. Todd did not look to the south again between the time he passed the yield right-of-way sign and the collision. He continued across at 10 m.p.h. and was approximately two-thirds (2/3) of the way across the northbound traffic lanes when his car and the northbound car, being operated by defendant Cecylia Borowski, collided. Following the impact the Todd car was turned around and facing almost west, still in the northbound lanes and in the north half of the intersection. The Borowski car, a 1955 Pontiac, ended up in a northeasterly direction, some 250 to 300 feet away, in a corn field.

Cecylia Borowski and her husband had left St. Joseph, Mo., about 2:00 a.m. that morning. She had been driving since 7:00 a.m. It had been raining through the morning. At the time of the accident it was raining, but she said not particularly heavily. Her car was in the right hand or most easterly lane, going north, about 60 m.p.h. About two hundred (200) feet south of the intersection she first saw the Todd car, which was then stopped at the stop sign west of Highway 66. She said it started to move into the intersection, proceeding very slowly. As she reached a point one or two car lengths from the intersection she realized there was danger of a collision, took her foot from the gas pedal, and turned her car to the right. Mrs. Borowski testified the Todd car appeared to increase its speed some as it entered the northbound traffic lanes. Mr. Borowski said the Todd car's speed was 20 m.p.h. Mrs. Borowski did not apply her brakes at any time before the impact.

There is some conflict in the testimony as to the point of first contact between the respective cars. Todd said his car was struck on the right side, just back of the front wheel. The witness Oltman, a State Police Officer at the scene afterwards, testified that the right front of the Todd car was damaged, that the motor was thrown out of the car, and that it was not repairable. Mrs. Borowski said her car was struck at the left front door and fender. Before the impact Karen, the decedent, was lying down in the front seat, and the boy Perry was in the rear seat with Mrs. Todd. After the impact the decedent was found 150 feet or so into a field in the direction of the Borowski car. The decedent had just completed the third grade, and her grades were good or excellent. She was a strong, robust child, of sunny disposition.

A part of the testimony of Marvin R. Todd, as abstracted, is as follows: "I glanced to the South at that time before I passed that yield sign and before I continued to cross the southbound lanes. I saw this car coming down the road that I estimated was 1/4 to 1/2 mile away. . . . I do not recall whether I slackened the speed of my vehicle at any time from the point where I crossed the southbound lanes of 66 until I entered the northbound lanes of 66. I do know I was reasonably certain it was clear."

Mrs. Todd, the plaintiff-administrator, wife of the defendant Todd, testified that she was a passenger in the car, she did not recall what occurred immediately before the collision because she had dozed off, and the first knowledge she had of the accident was when the cars hit. On cross-examination she said, as abstracted: "He (Mr. Todd) observed the traffic signs and signals between Rockford and this accident. He did not drive his car at an excessive rate of speed prior to the accident, but I would say in a careful and prudent manner."

The injury to guest statute, Sec. 42-1 of the then Motor Vehicle Law, Ch. 95 1/2 Ill. Rev. Stats., 1955, par. 58a, ...

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