Appeal from the Circuit Court of the Nineteenth Judicial
Circuit of McHenry County; the Hon. CHARLES S. PARKER, Judge,
presiding. Judgments in favor of plaintiffs affirmed.
MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
On April 14, 1963, defendant Diane Schafer, while driving her mother's automobile, picked up her friends Marjorie Jung and Janet Jung at their home in McHenry for an automobile ride.
A second automobile was operated by Arthur Buelens with his friends, Ronald and Louis Wolff, as passengers.
The two automobiles drove through downtown McHenry and then proceeded south on Route 31. While driving on the highway, the Schafer automobile overtook the Buelens' car and later the Buelens' car again overtook the Schafer car containing the three girls. While proceeding south on Route 31, Buelens attempted to pass a station wagon ahead of him but he observed a Rambler automobile proceeding towards him in the northbound lane and he thereupon pulled back into his own lane.
Miss Schafer testified that when Buelens got in front of her she let up on the accelerator and when Buelens' brake lights went on she swerved into the northbound lane of traffic to avoid his automobile.
On the other hand, Buelens testified that when he cut back in he felt a "jilt" in the rear end of his car and the Schafer car then passed him and cut in front of him sliding sideways. The car went partially off the road to the right and then crossed the southbound lane into the northbound lane and a collision between the Schafer automobile and the northbound Rambler occurred. Marjorie Jung was injured in the collision and her sister, Janet, was killed.
Suit was started by Majorie Jung and by the Administrator of the Estate of Janet Jung, deceased. A jury trial resulted in a verdict against defendant Diane Schafer and in favor of Marjorie Jung for $1,250 and in favor of the Administrator in the death case for $30,000.
After denial of the post-trial motion, defendant Diane Schafer appeals charging that the evidence fails to show freedom from contributory wilful and wanton misconduct; that the trial court erred in failing to instruct the jury that recovery under the Injuries Act (c 70, §§ 1 and 2, Ill Rev Stats, 1961) was limited to $30,000 and that the judgment in the death case was excessive and not based on the evidence.
The plaintiffs' action against Diane Schafer alleged freedom from wilful and wanton misconduct on the part of the two Jung girls and wilful and wanton misconduct on the part of the defendant.
The jury was instructed that for the plaintiffs to recover they had the burden of proving, first, that at and immediately prior to the occurrence they were free from wilful and wanton misconduct and, second, that the defendant was guilty of wilful and wanton misconduct, and that such misconduct on the part of the defendant was the proximate cause of the injury and death. The jury was also instructed as to the provisions of the Illinois Guest Statute, c 95 1/2, § 9-201, Ill Rev Stats, 1961.
The burden of proof is upon a plaintiff to allege and prove freedom from wilful and wanton misconduct contributing to the accident. Hatfield v. Noble, 41 Ill. App.2d 112, 119, 190 N.E.2d 391 (1963); Valentine v. England, 6 Ill. App.2d 275, 279-280, 127 N.E.2d 473 (1955); Lane v. Bobis, 340 Ill. App. 10, 12, 91 N.E.2d 106 (1950); Prater v. Buell, 336 Ill. App. 533, 536-537, 84 N.E.2d 676 (1949) and Willgeroth v. Maddox, 281 Ill. App. 480, 488 (1935). In the absence of proof the jury cannot be permitted to guess or conjecture on the question.
In this case, however, there is sufficient proof of plaintiffs' freedom from wilful and wanton misconduct to warrant the case going to the jury. First, there was proof that the two Jung girls were merely sitting in the front seat of the automobile. They were doing nothing unusual. Second, it is obvious that the situation of danger was apparent for at the most a few seconds before the collision and there was very little opportunity for the guests to warn the driver of any approaching danger. Third, the dangerous situation was obviously apparent to the driver and it was she who was in control of the vehicle. Fourth, there was testimony from Marjorie Jung that someone in the car said that Diane should get back into the other lane but Diane responded that she couldn't and somebody said to slow down. Although Marjorie testified she did not know who made the warning statements, the jury might well believe from her testimony that they were made by the decedent, Janet, immediately before the accident. We, therefore, conclude that there was sufficient evidence of plaintiffs' freedom from contributory wilful and wanton misconduct to sustain the verdict and it is not necessary for us to consider the argument by the plaintiffs that defendant is estopped from raising the issue by any waiver of the defense.
The defendant also urges trial error in that the court did not instruct the jury on the statutory limits on recovery under the Injuries Act. The accident occurred in April of 1963 and the trial took place in November of 1965. On August 3, 1965, the Injuries Act, c 70, § 2, Ill Rev Stats, (1965) was amended to provide, inter alia:
"In every such action, the jury shall determine the amount of damages to be recovered without regard to and with no special instruction as to the dollar limits on recovery imposed by this Section. In no event shall the judgment entered upon such verdict exceed $20,000 where such death occurred prior to July 14, 1955, and not exceeding $25,000 where such death occurred on or after July 14, 1955 ...