Appeal from the Circuit Court of Carroll County; the Hon. LEON
A. ZICK, Judge, presiding. Affirmed.
This case was instituted in the Circuit Court of Carroll County to recover damages for personal injuries sustained by plaintiff while riding as a guest passenger in an automobile owned and being driven by defendant.
The case was tried by a jury and a verdict returned for plaintiff in the sum of $19,000, on which verdict the court entered judgment. Defendant appeals.
It is the theory of the defendant that he was not guilty of any wilful and wanton misconduct that caused plaintiff's injury and further contends that if he was guilty of wilful and wanton misconduct, then the plaintiff was guilty of wilful and wanton contributory misconduct that bars recovery. He further argues that the condition of the highway was the cause of the accident and that the trial court erred in overruling his motion for a directed verdict at the close of all the evidence and his motion for judgment notwithstanding the verdict.
The plaintiff and defendant were young men twenty-one years of age and had been friends for a number of years having gone to high school together and on prior occasions had gone out together. The plaintiff did not know how to drive an automobile and did not have a driver's license. They first were together early in the day on November 5, 1960, and the defendant again picked the plaintiff up about 7:00 o'clock p.m. on that date in Savanna, Illinois, and they rode around town for a while and then drove north on Illinois Route 80 to the Village of Hanover, Illinois, where they stopped at a tavern and each had three or four glasses of beer. From Hanover they drove to Elizabeth, Illinois, where they visited a tavern and had a couple of glasses of beer. From there they went to the bowling alley where they had sandwiches and coffee. They then drove around Elizabeth for a while and returned to the tavern where they each had a couple of more glasses of beer. From Elizabeth they returned to Hanover where they revisited the same tavern, stayed a while and had three or four more glasses of beer. At 11:15 o'clock p.m. they left the tavern and drove south on Illinois Route 80. Plaintiff and defendant both testified that they were not intoxicated and an Illinois state trooper testified that there was no evidence of intoxication and no evidence that either was under the influence of intoxicating liquor. The doctor who treated the plaintiff in the hospital testified, "In the course of my examination and treatment of David Hatfield, I did not notice any signs of intoxication."
The collision occurred on Route 80 approximately seven miles south of the City of Hanover, Illinois, sometime after 11:15 o'clock p.m. on November 5, 1960. Route 80 at this point leads generally north and south and is a black top pavement with numerous curves in it. The highway was wet and it was a dark, hazy, rainy night. The defendant owned and was driving a 1960 Chevrolet automobile and the plaintiff was sitting in the front seat and was the only passenger.
The defendant testified as he drove south, he approached a curve south of a country store and he got over to the right to avoid hitting an automobile coming north, which appeared to him to be in his lane of traffic, and his right wheels dropped off of the pavement into loose gravel; that he went some distance trying to bring the car back on the pavement and took his foot off of the accelerator giving the wheel a jerk but that it whipped out of his hands. He tried to grab the wheel and the car proceeded left across the highway and skidded down the left shoulder and ditch where it hit a tree.
The testimony of two witnesses in an automobile, which had been passed by the defendant north of the scene of the accident, testified that they met no motor vehicles from the time defendant passed their car one mile north of the scene of the accident until they reached the scene.
The evidence concerning defendant's speed is conflicting. Defendant testified that he was driving 60 miles an hour. A passenger in an automobile which had been passed by the defendant a short distance from the scene of the wreck fixed the speed of the defendant's automobile at 75 miles an hour. An Illinois state trooper testified that after the collision the defendant told him that he was driving 70 miles an hour.
The plaintiff testified that defendant stayed within the speed limit after leaving Hanover until they got outside the city limits. He then increased the speed of his automobile. The plaintiff also testified that at one point he looked at the speedometer and they were going 80 miles per hour. Plaintiff further testified that the road had many curves and the defendant traveled them at a high rate of speed. He remembered that they passed a semi-trailer and one automobile a short distance up the road from where the accident occurred. He further remembered coming to the country store but did not remember anything thereafter until he way lying along the side of the road. At the hospital following the accident, he had a conversation with the defendant and said to him, "We were going pretty fast." Defendant did not answer.
Plaintiff further testified that when they left the tavern at Hanover, there was no doubt in his mind as to the ability of the defendant to drive the car properly; that he did not offer to drive because he did not have a driver's license and if he had thought defendant was driving improperly, there was nothing that would have prevented him from so advising the defendant, and further stated that at no time did he ever object to the manner in which the defendant was driving the automobile.
As to whether or not conduct is wilful and wanton in any given case necessitates close scrutiny of the facts as disclosed by the evidence, and while the rule of law to be applied does not vary, the facts to which the law is applicable always present different circumstances and facts which are in the main wholly dissimilar. Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435. Our Supreme Court in Bartolucci v. Falleti, 382 Ill. 168, 46 N.E.2d 980, 983, defined willfulness and wantonness in the following language:
"Ill will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness."
For an act to be wilful and wanton, the defendant need not have intended that any harm should ensue, nor actually know for sure that there would be any harm done. It is sufficient if he had notice which would alert a reasonable man that substantial danger was involved and failed to take reasonable ...