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Street v. Finney

JANUARY 31, 1973.

CLAUD STREET, ADMR. OF THE ESTATE OF LARRY LEE BYERS, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

KEITH FINNEY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Menard County; the Hon. RICHARD MILLS, Judge, presiding.

MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Judgments for plaintiffs were entered upon jury verdicts in actions for wrongful death and funeral expenses. Defendants appeal.

Decedent was a passenger riding in the left rear seat of the automobile driven by defendant, Finney. The latter was driving south upon an oiled country road in the nighttime. Defendant, Brown, was driving west upon a similar road and the cars collided at an uncontrolled intersection. The evidence conflicts as to the speeds of the respective vehicles and as to the extent of the obstruction of the view of the drivers by reason of growing soybeans. The evidence shows that Brown's car laid down 87 feet of skid marks prior to the impact. Defendant, Finney, testified that he did not see the approaching Brown car until he was in the center of the intersection. Since the judgments must be reversed upon points of law, we do not detail the evidence further.

The court refused Finney's tendered instruction, I.P.I. Civil, No. 14.01, and gave instead plaintiff's tendered instruction:

"When I use the expression `wilful and wanton conduct' I mean a course of action which shows an utter indifference to or conscious disregard for the safety of others, such as failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care." (Emphasis supplied.)

The first portion of the instruction is I.P.I. Civil, No. 14.01, omitting the language of intentional conduct, but the emphasized portion adds language from the opinion in Schneiderman v. Interstate Tr. Lines, 394 Ill. 569, 69 N.E.2d 293.

The defendant, Finney, argues that the instruction is confusing and improper in that it undertakes to define wanton conduct in terms of ordinary negligence. Plaintiff argues that the added portion is a proper modification of the pattern instruction and that the language of the pattern instruction is an incorrect statement of the law which permits unfair argument by defense counsel. He also urges that the Supreme Court has refused to overrule the Schneiderman language, citing Myers v. Krajefska, 8 Ill.2d 322, 134 N.E.2d 277; Klatt v. Commonwealth Edison, 33 Ill.2d 481, 211 N.E.2d 720; Hocking v. Rehnquist, 44 Ill.2d 196, 254 N.E.2d 515; and Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311. None of the cases cited by defendant concerned the instruction of a jury as to the definition of wanton conduct.

• 1 Supreme Court Rule 239, adopted effectively September 1, 1961, as Supreme Court Rule 25-1, provides that:

"[T]he I.P.I. instruction shall be used, unless the court determines that it does not accurately state the law."

Schneiderman, Myers, and Hering antedate the rule.

There is scholarly basis supporting the view urged by Finney. In Prosser, Law of Torts (4th Ed. 1971), p. 185, it is said:

"The usual meaning assigned to `wilful,' `wanton' or `reckless,' according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, amounting almost to willingness that they shall follow; and it has been said that this is indispensable. * * *.

The result is that `wilful,' `wanton' or `reckless' conduct tends to take on the aspect of highly unreasonable conduct, or an extreme departure from ordinary care, in a situation ...


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