Appeal from the Circuit Court of Winnebago County; the Hon.
WILLIAM R. DUSHER, Judge, presiding. Reversed and remanded.
The plaintiff-appellant, Joann Kamholtz, brought suit for damages for personal injuries incurred August 12, 1956 while riding as a guest passenger in a car driven by the defendant-appellee, Robert Eugene Stepp. The plaintiff charged in her complaint, as far as material that Alpine Road, in Winnebago County, was a black topped road running in a generally northwesterly direction; Forest Hills Road was a cement highway running in a generally northeasterly direction and intersected Alpine Road at an angle north of Rockford; Forest Hills Road was a preferred highway, there was a stop sign at the intersection requiring northbound traffic on Alpine Road to stop, and Alpine Road was a dead-end road at that intersection; on August 12, 1956 at 1:25 a.m. the defendant was driving his automobile on Alpine Road in a northwesterly direction and approached that intersection; the plaintiff was a guest passenger in the automobile; the plaintiff was free of any contributory wilful or wanton misconduct which caused her injury. The complaint then alleges:
"7. That the defendant, Robert Eugene Stepp was then and there guilty of one or more of the following acts of wilful, wanton and malicious misconduct in the operation of his automobile, to-wit:
a. That the defendant did then and there wilfully, wantonly and maliciously drive his automobile along said highway at a dangerously high and excessive rate of speed.
b. That the defendant then and there wilfully, wantonly and maliciously omitted to keep his said automobile under proper control.
c. That the defendant then and there wantonly, wilfully and maliciously omitted to keep a proper lookout along the highway in front of said automobile so as to discover and observe lawful and proper traffic controls and signs placed along said road.
d. That the defendant then and there wilfully, wantonly and maliciously drove and operated his automobile through a stop sign and off the end of the dead-end road, although he knew that said stop sign existed and that said dead-end road existed and that he was approaching said location.
e. That the defendant, wilfully, wantonly and maliciously drove his automobile into a place of danger, which in the exercise of due care and caution he should have discovered.
8. That as a result of one or more of the foregoing wilful, wanton and malicious acts the defendant's automobile did go off the highway at the aforesaid intersection, through a ditch, through a fence, a mailbox and into the adjoining persons' yard, causing the plaintiff to be thrown from the automobile and severely injured."
No answer to the complaint had been filed by the defendant.
A discovery deposition was taken of the plaintiff on July 9, 1960. The defendant thereafter filed a motion for summary judgment based upon the testimony of the plaintiff given in that deposition, the transcript of which was attached as an exhibit to the motion, upon the theory that the testimony of the plaintiff in the deposition does not support the plaintiff's allegations of the defendant's wilful and wanton misconduct. Counteraffidavits by the plaintiff were filed to the effect that it is her opinion that the defendant was driving in a wilful and wanton manner at the time of the accident, that he drove without maintaining a proper lookout for traffic and traffic signs, that a protest about his driving was made by the plaintiff 15 minutes before the accident, that she was a passenger in the automobile at the time and place concerned, that the defendant was driving at the time at more than 55 miles per hour, that she asked him to drive at a reduced speed and in a more careful manner 15 to 20 minutes prior to the accident, and that the defendant was familiar with the area, knew that Alpine Road dead ended at the point of the accident, and knew a stop sign was posted at that point for traffic going northwesterly on Alpine Road. The Court granted the defendant's motion for summary judgment and entered a final judgment for the defendant. The plaintiff appeals.
The parts of the testimony of the plaintiff in the discovery deposition set out in the defendant's motion for summary judgment are as follows:
"2. That on July 9, 1960, the Discovery Deposition was taken by the defendant of the plaintiff, under oath, in which deposition the plaintiff testified in part as follows, on pages 15 and 16 thereof, to wit:
`Q. At any time after you turned onto Alpine Road from Route 20, to the time the accident occurred, did you complain of his driving at all up to the time the accident occurred?
Q. Was there anything in the way he was driving the car that gave you any ...