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Mattyasovszky v. West Towns Bus Co.

JULY 2, 1974.

MATTYAS MATTYASOVSZKY, ADM'R OF THE ESTATE OF MATTYAS MATTYASOVSZKY, JR., DECEASED, PLAINTIFF-APPELLEE,

v.

WEST TOWNS BUS COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. GEORGE W. UNVERZAGT, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 25, 1974.

A wrongful death action, charging ordinary negligence and wilful and wanton misconduct, was brought by plaintiff against defendant and its driver, Posey. Plaintiff sought both pecuniary and punitive damages arising from the death of the deceased. At the close of the case-in-chief, Posey was dismissed from the case. The jury's verdict found defendant guilty of wilful and wanton misconduct, awarded plaintiff $75,000 pecuniary damages and $50,000 punitive damages, and found, by way of a special interrogatory, that the decedent was not guilty of contributory negligence.

Three months after trial, plaintiff was permitted to amend the complaint to include two additional counts, one stating a cause of action under the survival statute, the other stating a cause of action under the common law for wilful and wanton misconduct.

Defendant appeals contending, as a matter of law, that it was free from wilful and wanton misconduct and that the deceased was guilty of contributory negligence; that the jury's findings on these two issues were against the manifest weight of the evidence; that the award of punitive damages was not proper when the injuries resulted in the decedent's death; and that the award for pecuniary damages was excessive.

On February 12, 1970, the deceased, aged 12, was a passenger on defendant's bus. He, along with other passengers, alighted through the rear exit. Realizing that he was at a wrong stop, he attempted to re-enter the bus via the rear door and, as the doors closed on his wrist and foot, he became trapped on the outside of the bus. The conveyance started to move, passengers within shouted for the driver to stop and people outside pounded on the bus. The bus slowed, the driver turned his head, but the bus continued forward. Decedent freed himself from the door but was killed under the rear wheels of the bus.

It is contended that the defendant is not guilty of wilful and wanton misconduct as a matter of law because there is no evidence to support this finding; that the evidence presented concerning this charge so overwhelmingly favors the defendant that it is entitled to a judgment n.o.v. or, in the alternative, that the finding of wilful and wanton misconduct was against the manifest weight of the evidence.

• 1 Wilful and wanton misconduct was defined for the jury as "an utter indifference to or a conscious disregard for the safety of others." (IPI2d — Civil § 14.01.) This definition is in accord with Illinois case law. (See Myers v. Krajefska, 8 Ill.2d 322, 328-29 (1956); Klatt v. Commonwealth Edison Co., 33 Ill.2d 481, 487-88 (1965).) In determining whether the defendant was guilty of wilful and wanton misconduct as a matter of law, we may not consider conflicts in the evidence, credibility of the witnesses or the weight or preponderance of the evidence, but must take the evidence most favorable to the plaintiff as true. Hering v. Hilton, 12 Ill.2d 559, 562-63 (1958); Kubajak v. VerBrugge, 59 Ill. App.2d 344, 348-49 (1965).

Regarding judgments notwithstanding the verdict, the applicable rule of law is that a court should direct a judgment n.o.v. "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict * * * could ever stand." (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510 (1967).) Where there is sufficient evidence to submit the charge to the jury, the issue becomes a question of fact for the jury's determination. (Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143, 147 (1947), aff'd, 401 Ill. 172 (1948).) The jury is the judge of the credibility of the witnesses. (Chicago City Ry. Co. v. O'Donnell, 109 Ill. App. 616, 623 (1903), aff'd 207 Ill. 478 (1904).) "Where the trial court has heard the testimony and observed the witnesses we are not at liberty to disturb its judgment unless we can say that such judgment is manifestly against the weight of the evidence." (Myers v. Krajefska, supra, at page 328.) For a verdict to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. Green v. Keenan, 10 Ill. App.2d 53, 59 (1956).

In addition to the facts already related, evidence revealed that the defendant's bus lacked an outside, right rear-view mirror; that the bus' rear door safety device was inoperable due to the corrosion of the contact points in the bell housing; that the driver was not required to check the rear door safety device prior to each run although such check required only a matter of minutes; that the driver had turned off the stop-signal bell; and that the driver was not calling out the stops. Defendant presented evidence that the driver did not hear the shouts of the passengers or the pounding of others upon the outside of the bus. Such evidence is contradicted by evidence showing that the driver slowed the bus and turned his head. In Moore v. Jewel Tea Co., 116 Ill. App.2d 109, 136 (1969), aff'd, 46 Ill.2d 288 (1970), the court points out that "[v]alid jury questions of wilful and wanton conduct have been presented by as little as misjudging the distance of an approaching automobile, * * * and failing to look before making a left turn * * *."

• 2 We hold that, contrary to defendant's position, there was evidence of wilful and wanton misconduct. We further hold that this evidence was sufficient to deny defendant a judgment n.o.v.

• 3 Evidence that the defendant permitted the bus to carry passengers without an inspection of the rear door safety device and without the installation of an outside right rear-view mirror, and that the bus was moved forward without regard to the shouts of the passengers and the pounding of those outside, was sufficient basis for the jury's conclusion that defendant acted with an utter indifference to or a conscious disregard for the safety of the decedent. An opposite conclusion is not clearly evident. The verdict, finding defendant guilty of wilful and wanton misconduct, was not, therefore, against the manifest weight of the evidence.

Defendant maintains that the decedent was guilty of contributory negligence as a matter of law or, in the alternative, that by finding the decedent free from contributory negligence, the jury's verdict was against the manifest weight of the evidence. There is no claim that decedent was guilty of contributory wilful and wanton misconduct. Defendant's contention concerns only the issue of decedent's contributory negligence. Ordinary negligence on the part of the victim is not a defense in an action predicated upon wilful and wanton misconduct. (Scott v. Instant Parking, Inc., 100 Ill. App.2d 293, 299-300 (1968); Yelinich v. Capalongo, 38 Ill. App.2d 199, 205-206 (1962).) Having found that the evidence was sufficient for the jury to find defendant guilty of wilful and wanton misconduct, we conclude that there is no justiciable issue concerning defendant's contributory negligence.

Defendant asserts that under the Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, § 1 et seq.) pecuniary damages, not punitive damages, are ...


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