Appeal from the Circuit Court of Peoria County, Tenth Judicial
Circuit; the Hon. HOWARD WHITE, Judge, presiding. Reversed and
remanded with directions.
Rehearing denied April 3, 1970.
This is a wrongful death action commenced by Carrie Keel, Administratrix of the estate of Chester Keel, deceased, against Edna Compton, Administratrix of the estate of Howard Compton, deceased. The jury returned verdicts on the two counts submitted to it, the first in the amount of $5,000 for pecuniary loss to next of kin and the second, $1,200 for funeral expenses. The Circuit Court of Peoria County entered judgment on the verdicts in favor of plaintiff-appellant and against defendant-appellee. The post-trial motion of plaintiff was denied and the plaintiff has appealed from the $5,000 judgment only, contending that the same is inadequate and erroneous.
Chester Keel, aged 63, and Howard Compton, aged 55, were both residents of Brimfield, Illinois, and were employees of the Caterpillar Tractor plant at East Peoria, Illinois. For several years Compton had driven his car to and from work. Keel, together with other Caterpillar employees who resided along the route, regularly rode with Compton. After working the day shift on November 30, 1965, Compton with five other employees, including Keel as passengers, started for his home in Brimfield. At various points along the route the four passengers other than Keel were let out, the last of such passengers being let out at his home on U.S. Route 150 approximately one and one-half miles east of the scene of the collision, which took place at the intersection of Route 150 and the Hasselbacher Road. U.S. 150 is a two-lane paved highway and intersects with the Hasselbacher Road, a gravel road, at right angles. Proceeding easterly from such intersection there is a curve and a dip in U.S. 150 and consequently cars approaching the intersection from the east as was the Compton car, have a limited view of the intersection. The day was clear and dry but at the time of the collision (4:45 p.m. or near sunset), headlights were necessary.
As the Compton car was about to pull onto the highway from the driveway of the home of the last passenger let out, it was passed by a car driven by Mary Watkins going west on U.S. 150. The Compton car then pulled onto the highway behind the Watkins vehicle and both proceeded in the direction of the intersection with Hasselbacher Road. According to Watkins, she was travelling at about 60 miles per hour continuing such speed until she was at a point about one quarter mile east of the intersection at which time she slowed down, turned on her left turn signal and either stopped or practically stopped at the intersection waiting for an oncoming car to pass before making a left turn onto Hasselbacher Road. As she came to the intersection there was a truck stopped on the north shoulder of U.S. 150 at the northeast corner of the intersection. This truck had pulled off onto the shoulder to wait for traffic to clear in order to make a left-hand turn onto Hasselbacher Road. Another truck was stopped on Hasselbacher Road at the southeast intersection waiting to turn right or east onto U.S. 150. Snedeker, the driver of this truck, testified that he saw the Compton car about 500 feet beyond the Watkins car. The front end suddenly dipped as if the brakes were applied, the car swerved to the left, clipped the Watkins car and then glanced into the eastbound lane, where it was struck broadside by the oncoming car. Both Compton and Keel died as a result of the collision.
The original complaint brought by Keel's Administratrix charged Compton with both negligence and wilful and wanton misconduct. Only the negligence counts were submitted to the jury, the wilful counts being voluntarily withdrawn. It is plaintiff's theory that Keel was a paying passenger and, therefore, Compton owed a duty of ordinary care to him. In support of this theory, the plaintiff introduced the testimony of the other four passengers who each testified that he shared expenses by paying Compton $2.50 per week for riding with him. None of the passengers knew what the arrangement between Keel and Compton was, but there was testimony that Keel had been seen paying Compton.
In addition to returning its verdict for $5,000 in favor of plaintiff which is the basis of this appeal, the jury also found affirmatively in response to special interrogatories that Compton was the driver of the car and that Keel was a paying passenger.
Plaintiff argues that the trial court erred in failing to grant her post-trial motion for a new trial on the sole issue of damages because the verdict was based either on passion or prejudice or upon the jury's failure to consider all of the proper elements of damage sustained by plaintiff. Alternatively, she argues that she should have been granted a new trial generally both because of the foregoing alleged errors as well as errors in the admission of evidence and in rulings on instructions.
Since the adequacy of the damages is one of the principal issues of this case, the evidence relating thereto requires a brief summary.
The plaintiff and decedent had been married about forty years. Fourteen children were born of the marriage, ten living at the time of death. Two were living at home, a girl, age eighteen, in high school (whether this daughter was in high school is disputed in the briefs), and a son, thirty-three years old and self-employed.
The plaintiff wife was fifty-six years old with a life expectancy of 18.97 years. The deceased husband was sixty-three years old with a life expectancy of 14.14 years. The decedent had been for many years an employee in the foundry of the Caterpillar Tractor Company. The plaintiff wife had not been employed but occasionally performed gratuitous baby-sitting services for neighbors. The plaintiff Carrie Keel, and her decedent husband, Chester Keel, were buying a seven- or eight-room house on contract for deed and had owned it for about six years.
Mr. Keel made $6,081.09 as an employee at Caterpillar Tractor Company for the year 1963; $6,150.07 for the year 1964 and $5,981.01 in the year 1965 up until the time of his death on November 30, 1965. He gave his wife the entire check, and she handed him money on occasion for his personal expenses, usually a small amount each week. She handled all the expenses of the household.
Retirement age at Caterpillar is at the end of age sixty-five. If the plaintiff's decedent had survived the three years until retirement age, based upon his last year's earning, he would have made approximately $18,000. Keel was in good health, as were his widow and children, and from the testimony relating to ...