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Rowe v. Frazer

JUNE 23, 1967.




Appeal from the Circuit Court of the Eighteenth Judicial Circuit of DuPage County; the Hon. BERTRAM J. RATHJE, Judge, presiding. Reversed.


This is an appeal by Edna L. Hickey, the host in driving her automobile, from a verdict and judgment in favor of Anne L. Rowe, her guest, for $11,400 entered in the Circuit Court of DuPage County against her and Donna Frazer, co-defendant, driver of another car which collided with Mrs. Hickey's car. Donna Frazer did not appeal.

The original complaint was against Donna Frazer and Henry Rensman, the owner of the car which she was driving, in two counts charging ordinary negligence. Henry Rensman was later dismissed. Edna L. Hickey was made an additional party defendant and count three charging her with wilful and wanton misconduct was added to the complaint. Count three as finally amended was based upon five charges of wilful and wanton misconduct on the part of Mrs. Hickey: (1) excessive speed; (2) failure to have her vehicle under proper control; (3) failure to maintain a proper lookout; (4) proceeding straight ahead into an intersection while signaling an intention to turn; and (5) failure to sound the horn when it was reasonably necessary to do as to insure the safe operation of her motor vehicle. Defendant denied the charges.

Edna L. Hickey claims in her appeal that the trial court should have directed a verdict in her favor at the close of the case; that the verdict is against the manifest weight of the evidence; and that the court erred in denying the post-trial motion when these points were again raised. Appellee contends that the evidence, when viewed in the light most favorable to plaintiff, is sufficient to support the verdict of wilful and wanton misconduct on the part of the defendant Hickey, and that the verdict is not manifestly against the weight of the evidence.

There is little dispute about the facts. On June 8, 1963, about 1:30 in the afternoon, the defendant Edna L. Hickey was driving her car in an easterly direction on Roosevelt Road and approaching the intersection of Roosevelt Road and Winfield Road in the country near Winfield in DuPage County. Winfield Road runs northerly and southerly and is paved with blacktopping about 24 feet wide in 2 lanes for traffic and Roosevelt Road runs easterly and westerly with 4 concrete or blacktopped lanes approximately 40 feet wide. Roosevelt Road is also known as Route 30. The weather was clear and the pavement dry. There were no business or residential structures at or near the intersection, except a filling station on the Northeast corner. Only one or two other cars were in the area on either road at the time and they did not figure in the accident.

Accompanying her in the right front seat was the plaintiff Anne Rowe, her sister-in-law, then 66 years of age. Mrs. Rowe resided in St. Petersburg, Florida, but was on a visit to the home of her brother and the defendant, Mrs. Hickey, at Wheaton, Illinois, located east of the intersection where the accident took place.

The two ladies had driven to Aurora to pay some bills of Mrs. Hickey and were on their way back to the Wheaton home at the time of the accident.

At scene of the accident there were no traffic control devices on Roosevelt Road, but there was a standard stop sign situated on the south side of Roosevelt for intersecting northbound traffic crossing Roosevelt. The sign was located about 50 feet from the south edge of Roosevelt Road.

Plaintiff and this defendant had entered Roosevelt Road about two miles west of the accident scene by turning right off a road known as Gary Mill Road.

At the time defendant Hickey's car was driven onto Roosevelt Road, the defendant Hickey actuated the turn signals on the car which flashed lights on the front of the car. Both plaintiff and defendant Hickey testified that at the time the turn was made to enter Roosevelt Road an indicator on the dashboard flashed an intermittent light and also emitted a clicking noise. Both plaintiff and defendant Hickey testified that these signals ceased after the turn was completed and there were no further signals given within the car up to the scene of the accident.

Mrs. Hickey testified she travelled at about 50 miles an hour on Roosevelt Road until she came to a speed sign, limiting speed to 50 miles an hour, whereupon she slackened her speed to 45 miles an hour, and she maintained that speed until she applied the brakes just before the accident.

Plaintiff testified she observed the speedometer of the Hickey car about 500 feet from the accident scene and it registered 45 miles an hour. She stated she then looked to the right and saw a dense clump of bushes and trees, and observed the Frazer car a split second before the impact, feeling a sudden hard emergency application of the brakes, and feeling herself coming out of the seat toward the windshield.

Plaintiff testified also that she had not said anything to Mrs. Hickey about the manner in which she was driving, and was asked:

Q. "You had no fault to find ...

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