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Milton v. Britton

MAY 2, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. HARRY G. HERSHENSON, Judge, presiding.


Plaintiff brought action in the circuit court of Cook County against Harold F. Britton, administrator of the estate of Joy Ann Pfeiffer, deceased, for injuries sustained while riding as a guest in an automobile owned and being operated by defendant's decedent near Columbia City, Indiana. Plaintiff and decedent were the sole occupants in the automobile involved in the one-vehicle accident which resulted in the death of the decedent and the injuries to plaintiff. Trial was had before a jury which returned a verdict in favor of plaintiff in the sum of $45,000, and judgment was entered thereon. Defendant appeals.

Defendant contends that the trial court erred in (1) not entering the judgment notwithstanding the verdict in favor of defendant; (2) excluding the testimony of defendant's accident reconstruction expert; and (3) instructing the jury as to the definition of wilful and wanton negligence according to Illinois law instead of Indiana law. The facts are hereinafter set forth.

The accident, involving only the car in which plaintiff and decedent were riding, occurred on June 24, 1965, at approximately 10 A.M., on U.S. Highway 30, in the State of Indiana, at a point approximately 3 miles west of Columbia City. The highway is a four-lane divided road. The two eastbound lanes measure 22 feet in width and curve slightly to the right; the depressed and sodded median strip measures 30 feet in width; and the two westbound lanes measure 24 feet in width. The posted speed limit is 65 miles per hour. The highway pavement is blacktopped. Along the northern edge of the westbound lanes is a steep embankment which extends down from the highway to an open farm field. Telephone poles were located parallel to the highway, 75 feet north of the westbound lanes. The day was hot and sunny with good visibility, and the road condition was dry.

Larry Yeiter, of the Indiana State Police, testified for the plaintiff that he was the officer who arrived at the scene to investigate the accident. He stated that he inspected the decedent's automobile and found that the brakes were working and the brake pedal felt normal, but the frame and body were severely bent in several places. All four tires were still inflated and each had about one-third of the tread remaining. He testified that he made measurements and determined the path of the vehicle. There were tire marks in the eastbound lanes for 136 feet. The car then traveled at a 45-degree angle across the median strip for 128 feet and crossed the westbound lanes at the same angle for a distance of 46 feet. The vehicle came to rest in an open field at a point 131 feet beyond the westbound lanes. The officer further testified that his measurements indicated that the car had traveled 42 feet in the air as it left the westbound lanes, then came in contact with the ground prior to reaching the telephone poles and came to rest 10 to 15 feet north of the telephone wires. Defendant's objection to the opinion of the witness as to the speed of the vehicle was sustained.

Bessie Bacon testified that she was driving west on Highway 30, accompanied by her two sisters, and observed the accident. She stated that she first saw the decedent's automobile traveling in the right or outer lane of the two eastbound lanes. Another car was traveling in the same lane some distance in front of the decedent's car, but moving at a slower speed. She testified that the decedent's vehicle began to go around the lead car but instead, it left the highway and went across the median strip, bouncing as it traversed this area, then came up to and across both westbound lanes. After crossing the lanes it flew into the air and passed over the telephone wires north of the highway. As the car went up in the air it was turning over and the doors came off; some suitcases fell out and the plaintiff was thrown from the car while it was up in the air. The witness estimated the speed of decedent's automobile to be 70 miles an hour as it started around the other car in the outer eastbound lane. She stated that the car landed about 50 feet beyond the telephone wires in an open field, but she did not go close to the car after the accident.

Helen Schroeder testified that she was riding in the right front seat of her sister's car and she first noticed the decedent's vehicle bouncing across the median strip. It then came across the westbound lane about 100 feet in front of her sister's car when it bounced into the air and began turning over. Both doors came off and both occupants and some suitcases were thrown out. She stated that the car went over the telephone wires and landed 50 or 60 feet from the pavement, and that she never went closer to the car than the edge of the highway pavement. She estimated that as the car crossed the median strip its speed was 75 miles an hour.

Ethel Bach testified that she was riding in the back seat of her sister's car and first observed decedent's vehicle in the right hand eastbound lanes, going east. The car turned to the north and struck the left edge of the eastbound pavement, then proceeded into the median strip, bounced across to the westbound lanes, then crossed the westbound lanes, bounced into the air, flew over the telephone wires north of the highway and landed in a field. She stated that when the car flew into the air it rolled over three or four times, the doors opened and the plaintiff was thrown out of the right front door. She estimated the speed of the car to be 70 miles an hour.

Plaintiff testified that she does not drive and has never possessed a driver's license. Defendant invoked the provisions of the Dead Man's Act (Ill. Rev. Stat. 1963, ch. 51, par. 2) to prevent plaintiff from testifying as to any matters occurring prior to or during the course of the accident.

Richard Meredith testified for the defendant that he was with his wife and children, eating breakfast at a roadside picnic area 100 feet south of the eastbound lanes of Highway 30. He stated that upon hearing a screeching sound he looked up and saw decedent's car traveling across the median strip in a northeasterly direction. He estimated the speed to be 50 to 65 miles per hour. He did not see any other eastbound vehicle. The decedent's car went across the median strip, turned over and rolled down the embankment on the north side of the westbound lanes. It did not fly over the telephone wires to the north of the highway but went under the wires, although he did see both occupants thrown out of the car and into the air.

Ruth Meredith, wife of the previous witness, testified for the defendant that she looked up at the sound of screeching tires and saw the decedent's car going sideways down the eastbound lanes at about 60 or 65 miles an hour, facing a northeast direction. She watched it cross the median strip to the westbound lanes where it flipped over and rolled down the embankment on the north edge of the westbound lanes. She said that at no time was the car as high as the telephone wires and that it did not go over the wires.

Following the conference on instructions, plaintiff moved to introduce the testimony of her mother, Janet Milton, as to the careful habits of the plaintiff. The motion was denied by the trial court.

• 1 We proceed to a consideration of defendant's contentions on appeal. His first contention that the trial court erred in denying his motion for a judgment notwithstanding the verdict is predicated on the dual assertion that there was insufficient evidence presented as to the decedent's alleged willful and wanton negligence and as to the plaintiff's freedom from contributory willful and wanton negligence. In order to prevail on either of these two assertions that a judgment notwithstanding the verdict should have been entered in his favor, the defendant must successfully meet the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. The standard to be applied is that directed verdicts and judgments notwithstanding the verdicts should be entered only in those cases in which all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

Defendant's assertion that the evidence was insufficient to create a jury question as to whether decedent was guilty of willful and wanton negligence is similar to the contention raised by defendant in Larson v. Harris (1967), 38 Ill.2d 436, 231 N.E.2d 421. There, a guest passenger sued the defendant driver, alleging willful and wanton negligence in a one-vehicle accident wherein the plaintiff guest sustained injuries. There were no eyewitnesses, and neither the plaintiff nor the defendant could recall the occurrence due to post-trauma amnesia. The defendant did testify that prior to the accident he was in good physical condition; that his auto was in proper working order, and that the two-lane divided pavement was smooth and dry, the weather clear, and night-time visibility good. An investigating police officer testified that the defendant's car had gone off the road, down an embankment and struck a culvert. The automobile was found 249 feet from the pavement. No evidence of speed was introduced and no evidence was presented as to the cause of its crossing the center lane and down the embankment on the opposite ...

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