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Enloe v. Kirkwood

FEBRUARY 18, 1970.

SHARON ENLOE, PLAINTIFF-APPELLEE,

v.

NORA KIRKWOOD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lawrence County; the Hon. WILLIAM G. EOVALDI, Judge, presiding. Judgment affirmed.

GOLDENHERSH, J.

Defendant appeals from the judgment of the Circuit Court of Lawrence County, entered upon a jury verdict in the amount of $150,000.

As her first ground for reversal defendant contends the trial court erred in denying that portion of her post-trial motion which sought arrest of judgment.

Plaintiff's complaint as amended alleges that plaintiff was riding as a passenger in an automobile driven by defendant, was not guilty of any wilful or wanton acts which contributed to her injury, that defendant committed one or more of the following wilful and wanton acts:

"4. That on or about said time and place the defendant committed one or more of the following wilful and wanton acts:

"(a) With a conscious disregard for substantial risk to the safety of other persons, including plaintiff, she wilfully and wantonly drove said automobile off of the highway onto the shoulder at high speed.

"(b) With a conscious disregard for substantial risk to the safety of other persons, including plaintiff, she wilfully and wantonly failed to keep the automobile she was driving under proper control.

"(c) With a conscious disregard for substantial risk to the safety of other persons, including plaintiff, she wilfully and wantonly failed to keep a proper lookout for conditions and hazards of the highway.

"5. That as a direct and proximate result of one or more of the foregoing wilful and wanton acts or omissions on the part of the defendant, the defendant drove her said automobile off of the left side of said highway, causing said automobile to crash and tumble, and tossing the plaintiff to and fro against divers hard surfaces of said automobile, causing plaintiff to sustain severe and permanent injuries, . . . ."

We have examined the many authorities cited by the parties and conclude that under the authority of Larson v. Harris, 77 Ill. App.2d 430, 222 N.E.2d 566 (affirmed 38 Ill.2d 436, 231 N.E.2d 421), the complaint stated a cause of action, and the trial court correctly refused to arrest judgment.

Defendant next contends the trial court should have entered judgment notwithstanding the verdict.

The testimony shows that on January 9, 1965, plaintiff and defendant, both 17 years of age, had gone to a movie in Vincennes, Indiana. After the movie they went to a drive-in restaurant. Defendant drove away from the drive-in with a milk shake container held between her legs.

Joel Townsend testified he saw defendant's automobile in Vincennes, Indiana. He observed two girls in the front seat, and noticed they had a container that would "contain some kind of Coke or a milk shake," that was passed between them. He preceded defendant's car onto Route 50 and as he drove west defendant's automobile followed him at a distance of approximately 100 yards. His speed did not at any time exceed 55 miles per hour, both cars were in the right-hand lane, as he approached the Lawrenceville exit from Route 50 defendant's car moved to the left and went off the shoulder. At this point the highway makes a gradual curve to the right and there is a deep ravine sloping down on the left side of the road. He described defendant's move to the left as a movement one would expect if it were moving to the left to pass another car. The speed limit at this point is 70 miles per hour.

Defendant testified the condition of her health, vision and eyesight prior to the occurrence was good, and she had had a good night's sleep the night before. She was thoroughly familiar with the highway, her headlights were on, and she could see the traffic clearly in front of her. She passed no vehicle and none passed her. She was watching the road, did not fall asleep, but cannot remember anything from the time she crossed the bridge in Vincennes until she became conscious in the ditch after the occurrence. She ...


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