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Berendt v. Baumann

APRIL 25, 1966.

MARIE BERENDT, ADMINISTRATOR OF THE ESTATE OF BEVERLEE BERENDT, DECEASED, PLAINTIFF-APPELLANT,

v.

WILLIAM BAUMANN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD G. SCHULTZ, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment in favor of defendant in a wrongful death action to recover damages for the death of a nonpaying automobile passenger under the "guest statute." (Ill Rev Stats 1955, c 95 1/2, § 58a.) Recovery therein is dependent upon proof that the occurrence causing the injuries resulting in the death of the passenger was occasioned by the wilful and wanton misconduct of the defendant.

A verdict was returned in favor of the defendant and the jury answered "no" to a special interrogatory, "Was the defendant, William Baumann, guilty of wilful and wanton misconduct?" The court entered judgment on the verdict and denied the plaintiff's post-trial motion.

Upon appeal, plaintiff contends that the defendant was proven guilty of wilful and wanton misconduct as a matter of law and plaintiff was entitled to a directed verdict on the issue of liability. In the alternative, plaintiff says that the trial court erred (a) in striking portions of the complaint after proofs were closed; (b) in refusing to allow plaintiff to amend the complaint to allege as one of the "actions" of wilful and wanton misconduct, the failure of defendant to keep a proper lookout, and (c) in refusing to give certain instructions tendered by the plaintiff.

The testimony in the trial was that of the deceased's mother, Marie Berendt, and that of the defendant, William Baumann, whom plaintiff called for cross-examination under section 60 (Ill Rev Stats 1965, c 110 § 60).

At the time of the occurrence, defendant was 23 years of age, employed in the drafting department of a concern located in Northlake, Illinois, about ten miles from his home in Chicago, Illinois. On Friday, November 1, 1957, he followed his usual routine of arising at about 6:00 a.m., leaving for work between 7:00 and 7:15 a.m., working from 8:30 to 5:00 o'clock p.m., and arriving home from work at about 5:15 p.m. He had supper at home, washed and dressed. He drove to the home of the deceased, Beverlee Berendt, arriving there about 8:00 p.m. He had been dating Beverlee often for some five years. On this evening they were to attend a teachers' party in Rolling Meadows at the school where Beverlee was teaching. Mrs. Marie Berendt, Beverlee's mother, said defendant would rather have stayed home on this particular evening but that Beverlee desired to attend the party given by the teachers because all of the teachers, their husbands and boyfriends would be there. Nevertheless, it was decided that they attend. On the way, they stopped off at the home of another couple, staying there approximately 45 minutes. They then proceeded to the party arriving there about 10:00 p.m. They left this party at 11:00 p.m., with another couple and went bowling at the Beverly Lanes in Arlington Heights. Some time around 1:00 p.m., Beverlee and the defendant left the bowling alleys and en route home stopped at a gas station to have the car tank filled, the windshield wiped and the oil checked.

Defendant was driving a 1951 Lincoln, a heavy car, which was in good mechanical condition. Leaving the gas station he proceeded toward Beverlee's home taking Cicero Avenue to Elston Avenue in Chicago. Beverlee fell asleep in the front seat on the right side, in an upright position and near the car door. Elston at Cicero is a straight street, 45 feet wide having sufficient width for two lanes of traffic in each direction. Defendant was driving in the lane nearest the center of the road. The street was fairly well lighted and the headlights on the car were on and in good working order. He testified that he was driving with both hands on the wheel when at a point in midblock, "Well, I thought I saw a dark shadow running across the street so I swerved my wheel and hit the post." The car ran into a steel light pole, inflicting injury to Beverlee, killing her. Defendant said the dark shadow was approximately in the middle of the road when he saw it, almost directly in front of his car, travelling from north to south or from his left to his right. The first time he saw the shadow was about a car length away. It was larger than a dog or a cat but smaller than a person. It might have been cast, he said, by the light of an oncoming car. As soon as he saw the shadow he reacted, swerved the wheel and the car went directly into the post. He was aware of the neighborhood, having driven through a few times and he recalled there was a lumber yard or some kind of construction place on the right-hand side.

It was stipulated into the record that at the coroner's inquest defendant, when asked if at any time when driving a car he ever did see any of these objects he talked about, he answered that he always sees some shadow or something that seems to be crossing; that it was always a shadow from somewhere.

Beverlee's mother testified that defendant was one of the nicest young men she had ever known, he didn't drink, there was nothing unusual about him that evening and she was sure he did not have any ill will toward her daughter.

After this proof relating to the liability and other facts pertaining to damages, plaintiff rested.

Paragraph 3 of the complaint, as amended prior to the trial, read as follows:

The death of said decedent was the direct and proximate result of the wilful and wanton misconduct and gross negligence of the defendant in the following respects:

(a) In wilfully and wantonly and with gross negligence driving said motor vehicle at a high and dangerous rate of speed, contrary to and in violation of Sec 49 of the Uniform Act Regulating Traffic on Highways (c 95 1/2, Ill Rev Stats 1957, par 146);

(b) In driving said motor vehicle with a wilful and wanton disregard for the safety of persons or property including the person of decedent, contrary to and in violation of Sec 48 of ...


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