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Glaze v. Owens

DECEMBER 30, 1968.

WALTER GLAZE, PLAINTIFF-APPELLANT,

v.

JAMES OWENS AND KERBER PACKING CO., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. CHARLES G. SEIDEL, Judge, presiding. Reversed and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

This is a personal injury action brought by the plaintiff, Walter Glaze, to recover damages for injuries which he sustained in a rear-end collision, wherein the defendant, James Owens, was the driver of a truck owned by the defendant, Kerber Packing Co., which struck the plaintiff's station wagon. The jury returned a verdict for the defendants and judgment was entered thereon. The plaintiff filed a post-trial motion which was denied, and the plaintiff appealed.

The plaintiff contends that the trial court erred in withdrawing the question of wilful and wanton conduct from the jury; in giving an instruction relating to contributory negligence; and in admitting certain medical testimony. He also argues that the verdict was contrary to the manifest weight of the evidence.

The only occurrence witnesses were the plaintiff, the defendant Owens, and George Lunacek, who was driving another car in the area of the accident. There was little, if any, factual dispute. The testimony, however, was inconclusive as to some of the relevant issues. The accident occurred on a four-lane blacktop highway at approximately 3:30 p.m. on May 5, 1964. The weather was clear and the pavement was dry. A school bus, which had stopped to discharge some children, had been traveling in an easterly direction in the outside easterly lane of the highway. The car of the independent witness, Lunacek, was following the bus and stopped behind it, but in the inner of the two eastbound traffic lanes. The plaintiff's car was approaching from the east and was traveling in a westerly direction. The defendant's truck was following the plaintiff's car.

The witness, Lunacek, testified that the school bus was stopped as the other cars were approaching; that its flasher warning lights were on and its warning arm, which indicated that approaching vehicles should stop, was extended; that both the plaintiff's car and the defendant's truck were approaching at approximately the speed limit of 45 m.p.h.; that the defendant's truck was approximately four to five-car lengths behind the plaintiff's car; and that both of these vehicles were in the outer lane of the two westbound traffic lanes. He further testified that the plaintiff's car stopped for the school bus; that the defendant's truck was unable to do so; and that the truck driver made an attempt to stop and to avoid the car, but was unable to do so and ran into the rear of the plaintiff's car.

The evidence disclosed that there was a slight curve and ascending grade in the road at approximately the point of impact of the car and the truck; that there were three road signs at nearby locations to the east of the point of the accident, which were designed for vehicles traveling in a westerly direction — that in which the plaintiff's and the defendant's vehicles were traveling; and that one sign indicated the speed limit; another, a curve; and a third, a school crossing.

The plaintiff testified that when he first saw the school bus, the warning lights were on and the "stop" arm was extended; that at this time, his car was approximately 500 to 600 feet away from the bus; and that he was traveling from 35 to 50 m.p.h. He was asked whether he continued this speed when he saw the lights at 500 to 600 feet away, and he answered, "No." He stated that he slowed up and stopped, and that in relation to the school bus, he did not know where he first applied his brakes. On cross-examination, counsel for the defendants asked the plaintiff, "Would you say you stopped within maybe 50 feet after you slowed up?" and he answered, "I would guess I stopped when I was 50 feet, completely."

The plaintiff had lost the sight of his left eye prior to the accident, but his vision in the other eye was satisfactory and he had a valid driver's permit. He further testified that he did not look in his rearview mirror prior to stopping; that he did not see the defendant's truck at any time until after the impact; and that there was nothing to obstruct his view as he looked in a westerly direction just prior to the accident.

The defendant, Owens, did not testify extensively regarding the occurrence. He was given a citation for careless driving under an ordinance which provided:

"It shall be unlawful to operate any vehicle in the Village in a careless, reckless or wanton manner, or carelessly so as to endanger life or property."

He testified that he had pled guilty to this citation, but that he did so because it was a "shorter way out."

We believe that the trial court was correct in withdrawing the question of wilful or wantonness under these facts, from the jury's consideration. Wilful or wanton conduct has been described: as a course of action which shows an actual or deliberate intention to harm or injure another; as an intentional disregard of a known duty which is necessary to the safety of others or to their property; and as an act committed under circumstances exhibiting a reckless disregard for the safety of others. In order for a person to be guilty of wilful or wanton conduct, he must be conscious of his conduct and conscious, from the surrounding circumstances, that such conduct would naturally and probably result in injury to another. Scarlette v. Hummer, 41 Ill. App.2d 138, 143, 144, 190 N.E.2d 370 (1963). The defendant's conduct, as appears from the record, was not such that it would permit either the trial court or this court to approve a verdict finding the defendants guilty of wilful and wanton conduct, had the jury done so.

The plea by the defendant, Owens, to the traffic citation charging a violation of an ordinance prohibiting "careless, reckless, or wanton" driving, was not sufficiently specific to justify concluding that he was pleading guilty to wilful or wanton conduct. The plea was an admission against interest, which may be explained, as was done by Owens when he stated that in pleading guilty to the charge, he merely was looking for the shorter way out. Galvan v. Torres, 8 Ill. App.2d 227, 233, 131 N.E.2d 367 (1956); Cleary, Handbook of Illinois Evidence, 2nd Ed, § 17.12. The trial court acted properly in taking the question of wilful and wanton misconduct from the consideration of the jury.

We are compelled to agree with the plaintiff, however, that the verdict of the jury was contrary to the manifest weight of the evidence. We do not comprehend how the jury, under any interpretation of the evidence, could have failed to find that the conduct of the defendant, Owens, was negligent. The defendants suggest that they were thrown into a perilous situation, in part, because of the condition of the road; and that the curve in the road and the grade were factors which contributed to thrusting them into such situation. However, it is certain that the defendant, Owens, should have ...


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