Appeal from the Circuit Court of Wabash County; the Hon. ROY
O. GULLEY, Judge, presiding. Reversed and remanded.
Rehearing denied November 14, 1968.
This is an appeal by the plaintiff from a judgment for the defendants in an action for personal injuries.
The complaint filed herein contained two counts; the first count alleged negligence upon the part of the defendants and the second count alleged willful and wanton misconduct on the part of the defendants. The court directed a verdict for the defendants on the willful and wanton count. The jury returned a verdict for the plaintiff for $34,000 on the negligence count and also returned a special interrogatory finding the plaintiff guilty of contributory negligence. The court entered judgment for the defendants. Post-trial motions filed by the plaintiff were denied. The plaintiff has appealed from the court's judgment.
Two issues are presented by the plaintiff in his appeal. The first is whether the court erred in directing the verdict for the defendant on the willful and wanton count. The second is whether the court erred in setting aside the jury verdict on the negligence count and entering judgment for the defendants; or in the alternative whether plaintiff is entitled to a new trial on that count.
The occurrence as revealed by the testimony happened shortly after noon on July 1, 1964, on a county blacktop road running between Keensburg and Belmont, Wabash County, Illinois. The plaintiff, Robert Hocking, a farmer, lived near the scene of the occurrence. Shortly before noon the plaintiff and Roy Perry, a friend of the plaintiff, left the plaintiff's residence to combine wheat for a neighbor. The plaintiff drove the combine and Perry followed in a small truck. They proceeded westward on the blacktop. The blacktop extends generally westerly from Keensburg until it reaches the plaintiff's residence and then gradually curves to the northwest with a gradual decline from the curve. The plaintiff's residence is located on the south side of the curve. A small barn is located across the road from the plaintiff's residence. Westwardly from the curve the road is straight for at least 2,000 feet. The road is designated as 20 feet wide.
At a point between 700 and 1,300 feet west of the plaintiff's residence, the witnesses being in disagreement as to the exact distance, the plaintiff signaled Perry to pull off onto the right shoulder. The plaintiff parked the combine on the right shoulder and the truck driven by Perry was parked behind the combine. Again there was conflicting testimony as to whether the combine was completely off the road or whether a portion of it extended over the road. The testimony here ranged from the combine being completely off the road to testimony that the upper portion or header of the combine extended three feet onto the road.
The plaintiff had apparently stopped the combine when he observed his wife coming from the east in the family automobile. Mrs. Hocking was returning from the bank in Mt. Carmel where she had obtained cash to pay the farmhands. By any means, Mrs. Hocking pulled the automobile off on the opposite (south) shoulder. The front of the automobile was approximately opposite or parallel with the front of the combine. Again there was a dispute among the witnesses as to the exact location of the automobile. Here the testimony ranged from the automobile being completely off the road to it being 2-4 feet on the road.
The plaintiff crossed the road and talked with his wife through the driver's window. During the time that the plaintiff was talking with his wife, a pickup truck with a camper safely passed headed east, between the same physical obstructions as were present when defendant subsequently approached.
Then the defendant's truck approached from the east heading west. The truck was equipped with a tank and asphalt spraying equipment. The widest portion of the truck measured seven feet, ten inches. At the time it contained a capacity load of road oil. As the truck passed between the combine and automobile the plaintiff was struck and severely injured. Although there is a difference of opinion as to the speed of the truck, there is no dispute that the defendant driver of the truck did not sound his horn and did not apply his brakes.
Turning first to the question of whether the court erred in granting the directed verdict for the defendants on the willful and wanton count, we are guided by the recent Supreme Court decision in Pedrick v. Peoria & Eastern Ry. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967). In Pedrick the Court stated:
"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."
In reviewing the evidence in order to apply the test, the least that may be said is that there is disagreement as to nearly every fact necessary to determine the basic issue of whether the defendant was guilty of willful and wanton misconduct. Although there is agreement as to the width of the road and the width of the truck there is dispute, i.e., a question of fact, as to whether the combine extended over the road, and if so how much, where Mrs. Hocking's car was parked in relation to the road, whether the plaintiff was standing on the road or the shoulder, the distance from the curve to the point of collision, the distance at which the defendant either did or could have observed the obstacle, if indeed there was one, in his path, and the speed at which the defendant approached the scene.
The resolution of all these basic facts, is of course, necessary before a determination can be made of whether the defendant is guilty of willful and wanton misconduct. It is quite conceivable under the multitude of variables presented in the instant case that the jury could find that the defendant's action amounted to willful and wanton misconduct. Even if the jury were to find that one or both of the plaintiff's vehicles extended over the highway, if the jury were also to find that the defendant, after knowledge of the impending danger failed to exercise ordinary care to prevent the collision it would be justified in finding the defendant guilty of willful and wanton misconduct. This is not new law in Illinois. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293; Wallace v. Radovick, 55 Ill. App.2d 264, 204 N.E.2d 835 (1965); Walsh v. Gazin, 316 Ill. App. 311, 316, 45 N.E.2d 95 (1942); Kunz v. Larson, 15 Ill. App.2d 126, 135, 145 N.E.2d 746 (1957). Here there is ample evidence that defendant Berberich, the driver of the truck, could have observed whatever hazard was present, at a distance in which he could have taken such action as was necessary to avoid the occurrence. Furthermore, even under the testimony most favorable to ...