Appeal from the Circuit Court of Bureau county; the Hon.
WALTER DIXON, Judge, presiding. Reversed and remanded.
Rehearing denied June 5, 1961.
By this appeal we are asked, for the first time in this state, to articulate the elements making up willful and wanton misconduct in a situation where the driver goes to sleep at the wheel and injures a guest. The facts are important.
Both plaintiff and defendant are young people. They had been going together for about a year at the time of the accident sued on, which occurred shortly after midnight on Thanksgiving Day, 1958. Defendant, that evening, called for plaintiff around 8:30 at her home in Mineral, Illinois, having driven over from Tampico where he lived about a fifteen minute drive. Together they drove to Wyanet about fifteen miles to attend a dance. Both had worked that day, she at a bank, and he at a door factory in Sheffield. Defendant went to work at 7:00 A.M., having arisen between 5:30 and 6:00 A.M. He did not get off until 7:00 P.M. He had lunch at the factory, but does not recall whether he had supper at home prior to driving over to plaintiff's home. They had been together on the two previous evenings and his hours of sleep in each instance had been limited to about five or six hours. They arrived at Wyanet around 9:00 P.M. and stayed there until shortly before 12:30 A.M. when plaintiff told defendant she was tired and accordingly they departed for her home. Plaintiff went immediately to sleep in the front seat. Defendant's car was in good condition, the night clear and the weather good. He remembers a canal bridge about two miles west of Wyanet, but he remembers nothing beyond that point until just a second or two prior to the accident he saw a bridge over a culvert at the same time his car was veering to the left into the wrong lane and onto the shoulder, where after leaping a ditch, it struck an embankment and came to rest causing plaintiff's injuries. The scene of the accident is eleven miles west of the canal bridge near Wyanet. Whether his lack of memory can be ascribed to dozing from the canal bridge to the scene, or was attributable to a retrograde amnesia, is a question of fact, as there was evidence both ways. Plaintiff was asleep, as we have said, and knows nothing of the events leading up to the accident. Defendant "doesn't know for sure" whether he was dozing off or not as he approached the culvert. In a deposition he stated: "I guess that's what I think happened", and before a justice of the peace he said, "he knew he went to sleep, or he was reasonably sure". To the State Trooper who investigated the accident he said he "fell asleep", and to a doctor who was attending plaintiff within a short time after the accident he stated almost the same thing. The gist of his remembrance of things past is:
"With reference to whether that actually happened, so far as I am concerned, I didn't feel sleepy, but I don't know of any other explanation. I don't know whether I fell asleep. I believe I told them I thought that is actually what happened. I believe what happened is that I fell asleep."
That defendant did fall asleep is inferably evident and reasonably so, although we do not consider these various statements as direct and positive admissions that he did go to sleep. There is likewise no direct admission by him that he knew he was going to sleep or was being "overcome by sleepiness", or indeed any direct evidence by plaintiff that he or she had any warnings or prior awareness that sleep was coming on, if it did, whatever may be the reasonable inferences from all the circumstances that triers of the fact might justifiably infer. Plaintiff testified that during the evening he displayed no observable signs of being sleepy, and that the usual harbingers heralding the approach of sleep were singularly missing. At least nothing untoward sparked admonitions on her part. Whether in his own mind he should have taken note of this condition, if it existed, and did not, thus failing to exercise his judgment, or conversely, recognized the condition and then exercised his judgment erroneously, are, or could be, questions of fact.
To summarize, plaintiff considered his mental condition to be one of alertness, indeed, she testified she would not have driven home with him had it been otherwise, and he likewise considered himself to be in full possession of his faculties at the time they left the dance. Whether or not he went to sleep sometime after passing the canal bridge and was asleep just prior to the time he left the pavement, is, on his part, a supposition, although it may be a perfectly valid one. We do know that plaintiff was tired, because she said so, but whether or not defendant was pacing her in this respect, was a fact unknown to her, and certainly so far as direct evidence is concerned, unknown to him, whatever inferences otherwise might reasonably be raised from all the attendant prior circumstances.
Plaintiff's complaint under the Guest Statute, Par. 9-201, Chap. 95 1/2, Ill. Rev. Stat., 1957, charges defendant, as it must, with willful and wanton misconduct, in leaving the highway, driving at an excessive rate of speed, failing to keep his car under proper control, losing control, driving on the wrong side of the highway, and failing:
"to exercise proper care by continuing to drive when overcome by sleepiness and did fall asleep and in consequence thereof said automobile crossed the highway and crashed into the embankment as aforesaid."
We quote the last averment not only because it goes to the heart of the case, but because some question has been raised as to its meaning, as will be hereafter discussed. Defendant answered by flat denials, thus making up, in our view triable issues. Defendant's motion at the close of all evidence for a directed verdict was denied, but plaintiff's motion in this respect was allowed, and the case submitted to the jury on the issue of damages only, as to which they found for plaintiff in the amount of $18,000.00. Post-trial motions by defendant were overruled and this appeal follows.
The briefs present many issues, but only one warrants extended discussion, and we will limit ourselves to that as it is controlling in our view. This single issue involves the propriety of directing a verdict for plaintiff. In directing a verdict for plaintiff, the trial court was necessarily holding as a matter of law that plaintiff had established a case of willful and wanton misconduct, and defendant had failed to establish any defense thereto, and in consequence nothing remained for triers of the fact to ponder and decide. We can eliminate the allegations other than the one quoted above relative to being overcome by sleepiness, for surely jury questions were presented if the defendant was awake. If he was asleep, these acts could not constitute willful and wanton misconduct, for a person cannot be guilty of such conduct if he is asleep or unconscious. The reasoning behind this is simply that any action of a driver after he has lost consciousness is not a voluntary one, so that the stigma of fault does not attach. This presupposes, of course, that before the operator can be exonerated, the evidence must have been sufficient to prove a sudden loss of consciousness with no anticipatory warnings. In 9 Western Reserve Law Review 199, in an article entitled "Liability of the Unconscious Driver", it is said:
"As pointed out previously, the almost unanimous holding in the United States in that without anticipatory warning, the sleeping, unconscious or epileptic driver is not liable for his tortious conduct (28 ALR 2d 1, 1953); the Courts have had notably little difficulty here since they apply the general rule that liability for unintentionally causing a physical injury can only be predicated upon a failure to live up to a social standard of due care."
Our focus can thus be sharpened to dealing with the problem of whether the evidence relative to sleepiness mandated a holding that no issue of fact remained for submission to the jury.
While there is quite a bit said in the briefs as to the exact meaning of plaintiff's paragraphs relative to sleepiness, we take it to mean, and indeed it must mean, that defendant had, or should have had, some fore-knowledge or awareness at some point in time before he went to sleep, if he did, that he was being overcome by sleepiness. The charge is that defendant, "continuing to drive when overcome by sleepiness, and did fall asleep", and we think that a fair reading of this text, when read in the context that an awareness must be or should be present, spells out a charge, in essence, that defendant in continuing to drive knew, or ...