Appeal from the Circuit Court of Cook County; the Hon.
BENJAMIN WHAM, Judge, presiding. Judgment reversed and cause
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Plaintiff sues to recover for personal injuries sustained while riding in a car driven by the defendant. At the close of all the evidence the court directed a verdict in favor of the defendant and entered judgment thereon. Plaintiff's motion for a new trial was denied. On appeal, the sufficiency of the motion is questioned, defendant contending that it is too vague and general to meet the requirements of section 68.1(2) of the Civil Practice Act, Ill Rev Stats, c 110, § 68.1(2) (1965). The Supreme Court has resolved this question by its recent holding that where a verdict is directed, the party adversely affected need not file a post-trial motion to preserve for review any errors which may have occurred. Keen v. Davis, 38 Ill.2d 280, 230 N.E.2d 859 (1967). Therefore, notwithstanding the general language of plaintiff's post-trial motion, the points raised in the brief were properly preserved for review.
The principal point made by the plaintiff is that the evidence was sufficient to require the submission of the case to the jury on the issue of liability. He further argues that he was not a guest in defendant's automobile and accordingly was not required to prove the defendant guilty of wilful and wanton misconduct.
Plaintiff and the defendant Joseph Thomas had been business partners and co-owners of a tavern called "Charlie's and Joe's Club." In November 1956 the plaintiff Charles Sinclair became the sole owner of the business and changed its name to "See Sinclair's For Fun Club." Defendant remained liable however as co-lessee on the tavern lease and as co-obligor on a chattel mortgage. About 12:30 a.m. on September 14, 1957, the date of the occurrence, defendant visited the tavern to discuss his release on those obligations. Plaintiff agreed that the matter should be discussed, but asked the defendant to wait until he closed the tavern at 2:00 a.m., at which time they could discuss it over dinner. At about 2:15 a.m., the parties entered defendant's car and set out for an all-night restaurant some seven or eight blocks from the tavern.
It appears from the undisputed testimony that defendant drove in a normal manner; that he was not intoxicated; that the car lights were on and the streets were dry. They proceeded east on 63rd Street toward the intersection of Lowe Avenue, in Chicago. At that point 63rd Street has two lanes of traffic in each direction and the intersection is spanned by an elevated viaduct supported by pillars. Another car was proceeding in the same direction next to the defendant's vehicle. At that time the defendant's vehicle struck one of the viaduct pillars. Plaintiff described the accident in the following manner:
"As we approached 63rd and Lowe, we were driving along in a normal fashion. As we approached the bridge, I said, `watch out,' put my hands up over my face, and that's all. He hit something hard, and I blacked out."
The defendant did not testify. He did however introduce in evidence a statement obtained by an insurance adjuster. It was signed by the plaintiff and his wife and contained the following account of the occurrence:
"Suddenly, some guy on my side of the car was crowding us over to pass us to the right. It seemed to me Joe Thomas moved to his side to give some room to pass. About that time we hit an elevated pillar, and the car that caused all this, who crowded us over, just kept on going and never stopped."
Plaintiff acknowledged his signature on the statement, but when questioned concerning it, he testified:
"This document does not refresh my recollection that I ever told anyone that a car was traveling along on my right suddenly crowded Mr. Thomas' car over and caused him to run into the elevated pillar. I never said that."
Later, on cross-examination he said, "No car was crowding us over into that pillar that night."
The insurance adjuster Robert Mielchen testified for the defense that he had interviewed Sinclair about eight days after the accident; that he took Sinclair's statement down in longhand and that as Sinclair had broken his glasses, he asked Mrs. Sinclair to read the statement aloud to her husband and have him affirm the contents, which was done. The statement was then admitted into evidence without objection. This was the only evidence presented by the defense. Mielchen's testimony was contradicted by Mrs. Sinclair who testified that she signed the statement but did not read it. She explained that her husband was sick in bed and that she wanted to get the adjuster out of the house.
The rule with respect to the direction of verdicts has recently been modified by the Supreme Court of Illinois and now the sole question is whether all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence can be sustained. Pedrick v. Peoria & E.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. Before testing the sufficiency of the evidence, we must determine whether the plaintiff was required to prove wilful and wanton misconduct or simply negligence. The first question therefore is whether plaintiff was ...