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Dursch v. Fair

JULY 23, 1965.

FRED DURSCH, PLAINTIFF-APPELLEE,

v.

ANTHONY R. FAIR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 17th Judicial Circuit, Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment against the defendant, Anthony R. Fair, in the sum of $27,500 entered on a jury verdict, for personal injuries to plaintiff, Fred Dursch, allegedly caused by the wilful and wanton conduct of the defendant.

The amended complaint charged that the defendant operated a car on the Northwest Tollway in McHenry County on March 28, 1963, at 6:50 a.m., in a westerly direction, at which time the plaintiff was a passenger; and that the defendant, knowing himself to be sleepy, did, wilfully and wantonly continue to drive his automobile at a time when he knew that the plaintiff was asleep, and did either fall asleep while driving his automobile and did run into the rear of a trailer truck; or in the alternative, that the defendant wilfully and wantonly drove his automobile, while awake, into the rear of a moving trailer truck, colliding with said trailer truck.

Said complaint alleged plaintiff's freedom from wilful and wanton conduct; charged such conduct on the part of the defendant, and asserted that as the direct and proximate cause thereof, plaintiff was injured. The injuries were stated generally and alleged to be permanent in nature. The complaint also alleged pain and suffering, loss of employment and the incurring of medical expenses by plaintiff; the ad damnum prayed was $100,000. The answer denied all of the allegations of said complaint.

The defendant's theory of the case was that the court erred in not directing a verdict for him and in failing to arrest the judgment. The thrust of this charge was that there was neither a pleading nor evidence to sustain the verdict. The defendant further urged that the collision was an unavoidable accident; that the plaintiff was guilty of contributory wilful and wanton conduct; that the verdict was against the manifest weight of the evidence; that a statement of plaintiff's counsel constituted a judicial admission which negated any wilful and wanton conduct by defendant; and that the court erred in refusing to give defendant's instructions 15, 16, 21-25 inclusive, and 27, and in giving plaintiff's instructions 8, 9, 13, 14, 15 and 16. The plaintiff's theory of the case was essentially a negation of that of the defendant.

The defendant was 20 years of age; the plaintiff 28, at the time of the accident. On Tuesday evening, March 26, 1963, defendant met plaintiff at a bar in Rockford and thereafter plaintiff drove defendant's 1963 Chevrolet to the MGM Club in Cicero where they stayed until 4:00 a.m. Defendant drove back to Rockford and plaintiff slept from the time they left Cicero until they arrived in Rockford about 7:00 a.m. Defendant worked that day from 8:00 a.m. to 9:00 p.m., and about noon, plaintiff and defendant made arrangements to go to Chicago that evening. They left Rockford about 11:00 p.m. Plaintiff drove to the Playboy Club in Chicago and parked the car nearby. They went to the Club and remained there until about 4:00 a.m., and each consumed six or seven beers.

Upon leaving the Club, they walked to the car. Defendant testified that he was not drunk; was awake, alert, relaxed and did not yawn. He also said that plaintiff was sober, entered the car and sat in the right front seat. Defendant then told plaintiff that he was going to Cicero.

Plaintiff testified that he wasn't completely drunk but that he wasn't in any condition to drive; and that when defendant stated he was going to Cicero, the plaintiff said: "I am going to sleep, I suggest you do also, maybe we'll get a hotel," and that defendant said: "No, I want to go to the MGM," and plaintiff replied: "Well, I'm going to sleep." Plaintiff's next recollection was awakening two months later in a hospital.

Defendant testified that he drove his car after leaving the Playboy Club, got lost in the loop and was given a ticket by a police officer for driving the wrong way on a one-way street; that he then decided not to go to Cicero, but rather started back to Rockford on the Northwest Tollway; that just beyond the Elgin Plaza he awakened plaintiff, stopped the car and both plaintiff and defendant got out to answer nature's call; that they then resumed the trip home with defendant again driving and plaintiff sleeping. Defendant testified that shortly thereafter he drove the car into the rear end of a truck trailer; that he first saw the trailer when it was 500 to 1000 yards away; and that it likewise was travelling in a westerly direction.

He further stated that the toll road has two lanes for easterly and two lanes for westerly traffic, which lanes are separated by a median strip; that the car he was driving was travelling westerly in the outer (northerly) lane and the trailer truck was also travelling westerly in the same lane; that at the time and place of the collision no vehicles were in the inner lane for westbound traffic; that he noticed no traffic from the rear, and that he had his lights on; that it was dawn — 7:00 a.m.; and that he was sober.

The defendant described the accident in these words: "I saw the truck, and I had followed it for some distance. And then as though the truck either stopped or it was — as dim as it was, I seemed to be gaining upon it. In other words, rapidly gaining on it. At this time I looked at the speedometer to see whether or not I was speeding. And by the time I had looked up, the truck was almost on top of me. And I did one thing, I tried to cut to the left. And then I woke up in the hospital."

In response to the question: "Now Witness, isn't it true that just before you struck the truck trailer that you had fallen asleep?", the witness answered: "No." The plaintiff's attorney was then permitted to impeach the defendant by use of a statement which defendant had given on April 12, 1963, wherein, in response to the question: "Were you sound asleep?" the defendant answered: "I must have been sound asleep, either sound asleep, or I didn't see the truck." The defendant stated that he didn't remember making the statement. Defendant's physician testified that on April 12, 1963, the defendant was ambulatory, mentally alert and that the tranquilizers which he was taking would have no effect on his consciousness or mental capabilities.

The evidence revealed that as a result of the accident, the plaintiff suffered shock, a brain concussion, lacerations of the scalp, lip and chin, a fracture of the left femur with multiple lacerations and a dislocation of the right hip. He experienced double vision and, due to crushing injuries to the nerves, was unable to grasp with his left hand. At the time of the trial he was suffering from a calcification of the right hip. His right leg continued to swell when he was on his feet and his left leg had shortened approximately two and one-half inches. By stipulation of counsel, his hospital, nurses and doctor bills were considered to be reasonable and in the sum of $5,773.37.

George Schultz was driving the truck with which the car driven by defendant collided. He had travelled on the toll road about three miles when the collision occurred. His trailer truck and the merchandise being transported weighed 30,000 pounds. He was driving in a westerly direction in the outer (northerly) lane about 40 to 50 miles per hour just before the impact and had been driving about 45 to 50 ...


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