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Stewart v. Nelson

AUGUST 6, 1970.

BESSIE STEWART, PLAINTIFF-APPELLEE,

v.

HANCY NELSON AND JAMES SPARKS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County, Third Judicial Circuit; the Hon. FRED P. SCHUMAN, Judge, presiding. Judgment affirmed.

CHAMBERLAIN, J.

The plaintiff, Bessie Stewart, brought an action for personal injuries against two motorists, Hancy Nelson and James Sparks. A jury returned a verdict against both defendants in the amount of $7,500. The defendants appeal from the jury's verdict.

Bessie Stewart was a passenger in a vehicle driven by Hancy Nelson which collided with a vehicle operated by James Sparks; the collision occurred at the intersection of Third and State Streets in Madison, Illinois, at approximately 3:30 p.m., in January 1966. The weather was cloudy and rainy; the traffic was moderately heavy. The Nelson car was proceeding west on Third Street which led to a T intersection with State Street. A stop sign was at the intersection for traffic on Third Street. The Sparks car was travelling on State Street, a through street, in a northerly direction.

Mrs. Nelson stopped at the stop sign and waited for the traffic to clear. As she waited, her car moved up closer to the intersection and she pulled out partially into State Street. As she turned south, the car collided with the vehicle operated by Sparks.

A passenger in Mrs. Nelson's vehicle testified that the Jeep driven by Mr. Sparks was traveling 40-45 miles per hour. The posted speed limit was 35 miles per hour. Mrs. Nelson testified that she did not see the Sparks car until after the collision. Mr. Sparks testified that he was traveling at the rate of 25-30 miles per hour and that he first saw the Nelson car when it "lunged out" in front of him. He further stated that because of this he could not stop his vehicle prior to impact.

Each defendant appeals on the grounds that as a matter of law there was no liability and that the jury's verdict is against the manifest weight of the evidence. Each further claims that a new trial should be granted on the grounds plaintiff's counsel made improper and prejudicial final argument. The defendant, Sparks, also claims reversible error was made by the admission of a discovery deposition over his objection.

We believe the evidence presented by the plaintiff made a prima facie case against each defendant, and created questions of fact for the jury to resolve.

The plaintiff's case against Hancy Nelson was similar to that of the plaintiff in the case of Augustine v. Stotts, 40 Ill. App.2d 428, 189 N.E.2d 757. In that case, the plaintiff was a passenger in a car operated by the defendant, who had stopped at a traffic sign. After the defendant made her stop she proceeded into the highway and was struck by another vehicle. The jury found the driver guilty of wilful and wanton misconduct. The Court stated:

"The facts were such as to raise a question of fact for the jury as to whether defendant was guilty of wilful and wanton misconduct either in seeing the oncoming automobile and wilfully, wantonly or recklessly attempting to race across the highway ahead of such automobile, or being guilty of wilful and wanton misconduct in failing to look and discover the oncoming automobile on the state highway. The jury found, as a fact, that the defendant as host driver was guilty of wilful and wanton misconduct. Since the jury has come to such conclusion, and (on the basis of the record before us which made the determination of whether or not defendant was guilty for the jury) this Court cannot substitute its judgment for such conclusion on appeal in this Court (citing cases)." (40 Ill. App.2d 430-431, 189 N.E.2d 758-9.)

In the case of Ritter v. Nieman, 329 Ill. App. 163, 67 N.E.2d 417, the appellate court reversed a trial court which had directed a verdict for the defendant at the close of plaintiff's case. The facts were similar to this case and to the Augustine case, and the appellate court stated at page 173:

"We are also of the opinion that the Court erred in not submitting to the jury the issue raised in the second count of the complaint, namely whether or not the defendant was guilty of wanton and wilful misconduct. If the witnesses for the plaintiff are to be believed, it can be fairly inferred that the defendant drove through a stop sign without stopping and looking, and into an intersection where he struck an automobile that he didn't even see before he struck it. The defendant had crossed this intersection for many years and knew of the existence of the stop sign, and that this was a place of danger. Whether or not such conduct indicated a reckless disregard for the safety of others was a question of fact properly to be submitted to a jury (cases cited)."

In the present case the jury found in answer to a special interrogatory that defendant Nelson was guilty of wanton and wilful misconduct; that finding is not against the manifest weight of the evidence.

There is also ample evidence to support the jury's finding of negligence against Mr. Sparks. There is testimony by a witness that he exceeded the posted speed limit when the weather was cloudy and rainy and the traffic fairly heavy. He was only 10 feet from the Nelson car before he applied his brakes. Whether this defendant was guilty of negligence under this set of facts was for the jury to decide.

Both defendants also contend reversible error was made by plaintiff's counsel in final argument. The alleged errors result from ...


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