Appeal from the Circuit Court of Cook County; the Hon. WILBERT
F. CROWLEY, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Plaintiffs appeal from a judgment on a verdict of not guilty in a personal injury suit growing out of a collision between a passenger automobile owned and driven by plaintiff Edgar Greenlee and a truck owned by defendant Shedd Aquarium and driven by defendant Barry.
The accident occurred on Route 20, a two-lane highway, about two miles east of Elizabeth, Illinois, on Sunday afternoon, November 3, 1957. The weather was fair, the highway was dry and visibility was clear. Route 20 is divided by a line down the center marking the respective east and westbound lanes. At the place where the accident occurred the road runs along the top of a narrow ridge, about a mile and a half long. It is a winding, hilly road, but as to the precise point of impact, there is testimony that the road was straight. There is a substantial gravel shoulder on either side. The collision occurred near the west end of the ridge. At that end the road goes downhill and there is a curve.
Plaintiff Edgar Greenlee, an automobile mechanic 32 years old, was driving his 1952 Lincoln car east on his way home from a picnic with his family consisting of his wife and four children. Defendants' vehicle was a 3 1/2 ton truck equipped for the conveyance of specimen fish for the Shedd Aquarium. It was driven by defendant Barry, a collector for the Aquarium, and riding with him was William Paul Braker, assistant curator for the Aquarium. They had left Chicago early that morning and were driving west to a point in Iowa to gather some specimens. Greenlee was going uphill and was at or near the curve to which we have referred when the left front side of his car collided with the left front side of the truck. Plaintiffs' car went over a ditch, through a fence and landed in a field about 600 feet from the point of impact. Two of plaintiffs' children were killed, Edgar Greenlee's left arm was amputated, and injuries were sustained by his wife and one of the surviving children. The truck went about ten feet and stopped in its right lane, parallel with the center line.
It is argued that the verdict and judgment are against the manifest weight of the evidence. There is no merit whatsoever in this point. On the contrary, the manifest weight of the evidence supports the verdict of not guilty, and the only question is whether the record shows reversible error. The principal point made by plaintiffs is that the court erred in sustaining defendants' motion to strike the wilful and wanton count of the complaint. On that point it is necessary that we review the evidence in some detail.
Edgar Greenlee testified that as he was going uphill and entering the curve, he was driving between 30 and 35 miles per hour; that he was on the proper side of the roadway; that after he saw the truck he was looking at the road and that when he saw the truck again, it had come into the curve, at which time they were 25 to 30 feet apart and "it looked like he was about half way across the center line on my side. . . . From then on it was almost a blank. . . . I touched my brakes . . . and jerked the steering wheel of the car . . . to the right. My left front fender and his left front fender [came together]; . . . [the impact took place] on my side of the road." (Emphasis supplied.) On cross-examination he testified that on the way to the picnic grounds he drove the car at 60 miles an hour and coming back he went from "60 to 45-45 to 60" and that "the nearest point I went 50 coming back to Chicago was before I came to Elizabeth." That is the only factual account of the accident given on behalf of plaintiffs. Mrs. Greenlee remembers nothing of the accident or what immediately preceded it. She does remember passing a car around Elizabeth. It was going very slowly, "between 15 and 20."
Edgar Greenlee's story is refuted by the overwhelming weight of the evidence introduced on behalf of defendants. Barry testified that he had driven up to 45 miles per hour that day and that at no time had he driven the truck over the center line. He first observed plaintiffs' car when it came around the curve about 125 feet away from him. The truck was on a straight stretch of road and plaintiffs' car was tilted toward the outer side of the curve to its left; half of it was over the center line into the westbound lane. It appeared to Barry that the driver was attempting to maneuver his car back into the eastbound lane. Upon observing the approaching car, Barry applied his brakes as hard as he could. They were in good working order. The truck stopped rather abruptly in the westbound lane, parallel to the center line. No portion of the truck was over the center line. He estimated the speed of plaintiffs' car at approximately 60 miles an hour.
William Paul Braker testified that he observed plaintiffs' car when it was approximately 150 feet west of defendants' truck; that plaintiffs' car was traveling in excess of 55 to 60 miles an hour and that when it had traversed half the curve, approximately three-fourths of the car was in the westbound lane. It then began laboriously and gradually to veer into the eastbound lane. The truck remained in the westbound lane at all times. Part of the Greenlee car was in the westbound lane at the time of the impact. The truck stopped within 10 feet after the impact. Braker felt the brakes being applied by the driver. There was no change in the direction of the truck.
In addition to Barry and Braker, there were four eyewitnesses for the defense, traveling in two cars behind the truck Mr. and Mrs. Bertis L. Hubb and Mr. and Mrs. Mernice Toepfer. They substantially corroborate Barry and Braker. Mr. Hubb had followed the truck for about a mile and a half and estimated its speed at 40 miles an hour. He estimated the speed of the Greenlee car at approximately 80 to 90 miles an hour. Mrs. Hubb estimated the speed of the truck at 30 to 35 miles an hour and the speed of the Greenlee car at 60 to 70 miles an hour. Mrs. Toepfer estimated the speed of the truck at 30 to 35 miles an hour and the speed of the Greenlee car at between 60 and 65. Mr. Toepfer estimated the speed of the Greenlee car at about 60 to 70 miles an hour. All of them testified that the truck was in its proper lane on the right hand side of the roadway. Four of them testified that the Greenlee car was in the wrong lane.
Another witness for the defense, Leo Snyder (not an eyewitness, but an important one) testified that he was driving east with his wife and that he first noticed the Greenlee car as he was going through Elizabeth. It passed him outside of Elizabeth in an "S" curve just before reaching the ridge in question. He testified that he, Snyder, was going 45 miles an hour and that the Greenlee car was going approximately double that speed when it passed him. He further testified that the Greenlee car after passing him passed another car in front of him and then cut short because there was an oncoming car. Snyder did not see the actual collision but saw the Greenlee car go through the fence on the ridge following the collision. The truck was parallel with the center line. Snyder's wife was reading a book and did not see the Greenlee car, but was conscious of the roar of an automobile as it passed them on the curve. The testimony of Snyder, going in the same direction as the Greenlee car, is very convincing proof of the high speed at which Greenlee was driving as he approached the scene of the accident.
Thus seven witnesses, five of them wholly disinterested, support the defense. Their estimate of Greenlee's speed varies from 55 to 90 miles an hour. Against this is Edgar Greenlee's testimony that he was going 30 to 35 miles an hour and that defendants' truck was on the wrong side of the road. This is the testimony of a man whose mind became blank and who seconds afterward was terribly injured and unconscious. The jury believed defendants' witnesses and so did a competent, experienced trial judge.
At the close of plaintiffs' evidence, defendants moved to strike the wilful and wanton count. The court reserved its ruling and at the close of all the evidence, sustained the motion. In a previous opinion we held that this was error. We reached that conclusion on the basis of the decisions holding that on such a motion only that evidence could be considered which was most favorable to plaintiffs. We isolated that evidence and then considered it in connection with the attenuated distinction now made by Illinois courts between wilful-wanton conduct and negligence. Hering v. Hilton, 12 Ill.2d 559, 563, 147 N.E.2d 311, 314; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583, 69 N.E.2d 293, 300; Foster v. Bilbruck, 20 Ill. App.2d 173, 180, 155 N.E.2d 366, 370. On that basis, we reached the conclusion that the very slight evidence supporting plaintiffs' case was sufficient to sustain the wilful-wanton count.
On rehearing, defendants made the point that the ruling of the court with respect to the wilful and wanton count, even if it were error (which they argue it was not) did not affect the outcome of the case and therefore is not reversible error. Baker v. Baker, 412 Ill. 511, 519, 107 N.E.2d 711, 715; Lindroth v. Walgreen Co., 407 Ill. 121, 136, 94 N.E.2d 847, 854; Loucks v. Pierce, 341 Ill. App. 253, 260-61, 93 N.E.2d 372, 376. Their argument is that the jury having found defendants not guilty as to all the plaintiffs, including the passengers, must thereby have concluded that defendants were not guilty of any negligence and that it was Edgar Greenlee's negligence which was the sole cause of the accident. The jury had been instructed that "no ...