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Hicks v. Hendricks

OCTOBER 29, 1975.

PERRY HICKS, PLAINTIFF-APPELLANT,

v.

ROBERT HENDRICKS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding. MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff-appellant, Perry Hicks, appeals from a judgment of the Circuit Court of St. Clair County entered on a directed verdict in favor of defendant-appellee, Robert Hendricks, on a count charging willful and wanton misconduct and on a jury verdict in favor of defendant on a count charging negligence.

The case arose from a collision between automobiles driven by plaintiff and defendant at the intersection of 71st Street and St. Clair Avenue in East St. Louis, Illinois. Count I of the complaint alleged that defendant was guilty of one or more acts of negligence. Count II alleged that defendant was guilty of willful and wanton misconduct in failing to keep a proper lockout, operating his automobile in a reckless manner, driving his automobile at excessive speed (70 miles per hour), failing to stop or swerve to avoid the collision, and proceeding through a yellow caution light with utter and conscious disregard of the consequences. The acts alleged as willful and wanton misconduct in Count II are essentially the same as those charging negligence in Count I.

The court granted defendant's motion for a directed verdict with respect to Count II of the complaint, but denied the motion with regard to Count I and submitted the issue to the jury. The jury returned a verdict for the defendant.

Plaintiff was driving south on 71st Street. Traffic on 71st Street was controlled by stop signs on the north and south and a flashing red light hanging in the median. St. Clair Avenue is a four-lane divided preferential highway and had a speed limit of 65 miles per hour at the time of the accident; it is divided by a median 18 feet wide containing left turn lanes both east and west of 71st Street. Traffic on St. Clair Avenue is controlled by yellow flashing lights. Each of the four lanes of St. Clair Avenue is 11-12 feet wide while 71st Street is 24 feet wide.

Plaintiff testified that he stopped at the stop sign on the north side of St. Clair Avenue and waited while two cars passed from east to west. He then crossed the westbound lanes of St. Clair Avenue and entered the median at about 3-4 miles per hour and slowed, at which time he saw two cars coming from his right, one in the left hand lane approximately 350 feet away, and the other in the right hand lane about 300 feet away. Plaintiff then proceeded across the eastbound lanes of St. Clair Avenue and was struck in the right rear by the automobile driven by defendant.

There is some confusion in the record as to when defendant first saw plaintiff enter his side of the highway. Michael Barger, one of the passengers in defendant's car, testified defendant was 300-400 feet away when he first saw plaintiff's car cross the westbound lanes and was 100 feet away when he saw plaintiff's car enter the eastbound lanes of the highway. As noted by plaintiff's counsel, this testimony was in conflict with Barger's earlier deposition, in which he had stated defendant was 300 feet away when he saw plaintiff's automobile enter their half of the highway. Defendant testified that he first saw plaintiff cross the westbound lanes of St. Clair Avenue when he was 300 feet away and that he saw him enter the median when he was 150 feet away. He further testified he was traveling about 60 miles per hour as he approached the intersection; Barger testified that he did not think defendant was traveling over 65 miles per hour as he approached the intersection. Plaintiff stated that he did not know how fast the cars were traveling.

There is also some confusion as to what took place after defendant saw plaintiff's automobile. Barger testified they were about 50 feet away from plaintiff when defendant first applied his brakes and that they were traveling 45 miles per hour at the time of impact. He further testified that he thought defendant sounded his horn for 300 feet before the impact and swerved to avoid the accident. Defendant testified that he took his foot off the accelerator when he was about 300 feet from the intersection and that at 150 feet, when he saw plaintiff enter the median, he put his foot on the brake pedal although he did not brake at that time. He was 85-100 feet from plaintiff when he fully applied the brakes and began sounding his horn. Defendant stated he then swerved to his right and was traveling 50-55 miles per hour at the time of impact, striking the middle of the plaintiff's automobile. Plaintiff testified he did not hear the screeching of brakes. State Trooper Stanley Gula, who investigated the accident, testified that he found 10 feet of skid marks in a slightly southerly direction over the center line of the eastbound lanes of St. Clair Avenue, west of the center line of 71st Street. He also testified these skid marks could have been made before or after impact.

• 1 Plaintiff first contends that the trial court erred in directing a verdict for defendant on Count II of plaintiff's complaint alleging willful and wanton misconduct. In determining this issue we must follow the rule of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967), that verdicts should be directed only where the evidence, when viewed in the light most favorable to the opposing party, supports the moving party so overwhelmingly that a contrary verdict could never stand. It is also settled that the court must resolve conflicts in the evidence in favor of the plaintiff, and if it finds any evidence which, if believed, could support a verdict for the plaintiff, it is error to direct a verdict for defendant. Zank v. Chicago, Rock Island & Pacific R.R. Co., 17 Ill.2d 473, 161 N.E.2d 848 (1959); Hatfield v. Noble, 41 Ill. App.2d 112, 190 N.E.2d 391 (1963); Barnhart v. Martin, 327 Ill. App. 551, 64 N.E.2d 743 (1945) (abstract opinion).

• 2 With these considerations in mind, we examine the record to determine whether defendant's conduct might constitute willful and wanton misconduct. The standard definition of willful and wanton misconduct was set out by the Illinois Supreme Court in Bartolucci v. Falleti, 382 Ill. 168, 174, 46 N.E.2d 980, 983 (1943), in which the court stated:

"Ill will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person, or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness."

(See also Hatfield v. Noble; Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311 (1958).) Willful and wanton misconduct requires a finding that defendant was aware of a risk of harm to plaintiff which defendant could avert but acted in conscious disregard of this risk resulting in harm to plaintiff.

Construing the evidence in a manner most favorable to plaintiff, defendant was 300 feet away from plaintiff when he saw plaintiff leave the median and enter the southern half of St. Clair Avenue. Defendant was traveling 60-65 miles per hour at the time and fully applied his brakes when 50-100 feet away from the plaintiff. The day was clear, the pavement was dry, and there were no obstructions to defendant's view. Plaintiff was traveling 8-10 miles an hour when hit, having entered the southern half of St. Clair Avenue after seeing a car approaching in the left lane about 350 feet away and one in the right lane about 300 feet away.

• 3 We find nothing in these facts which would support a determination by the jury that defendant was guilty of willful and wanton misconduct. Therefore, we affirm the granting by the trial court of defendant's motion for a directed verdict.

• 4 Plaintiff alleged in his complaint that defendant was guilty of willful and wanton misconduct in that he failed to "keep a lookout for other traffic on the public highway." Plaintiff offered no evidence at trial that defendant did not keep a proper lookout; rather it appears plaintiff was the one who failed to keep a proper lookout. Defendant could reasonably expect that plaintiff would yield the right of way when at 300 feet away he saw plaintiff stop before ...


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