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Madigan v. Browning Ferris Industries

OPINION FILED JULY 3, 1978.

THOMAS MADIGAN, PLAINTIFF-APPELLANT,

v.

BROWNING FERRIS INDUSTRIES ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

The plaintiff, Thomas Madigan, appeals from a judgment in favor of defendants, Browning Ferris Industries and Howard Schneider, in an action for personal injuries arising out of a collision between plaintiff's motorcycle and defendants' garbage truck.

Plaintiff, aged 21, was riding his motorcycle in an easterly direction on Lakehurst Road in Lake County, near Lakehurst Shopping Center, when the accident occurred. Lakehurst Road at that place was a five-lane highway with two lanes eastbound, two lanes westbound and a left turn lane for eastbound traffic near the scene of the accident. Plaintiff's testimony was that he was driving in the left hand lane just before 7 a.m. on September 4, 1975, on his way to Abbott Laboratories where he was employed. He saw defendants' garbage truck pull out from the parking area of the shopping center, drive across the right lane then proceed easterly ahead of him in the left lane of Lakehurst Road. Plaintiff stated he observed the truck's turn signals and they were not then operating. He proceeded at a speed of approximately 25 to 30 miles per hour and caught up to the slower moving truck which was still traveling in the left lane of traffic. He testified that as he approached the truck to pass it in the right hand lane, its directional signals were not on but that at a point when he had proceeded into that lane and along the right side of the truck he saw a turn signal on its right front fender come on, indicating a right turn, and that at almost the same moment the truck turned towards him into his lane. Plaintiff applied his brakes, steered towards the curb and pushed himself off the motorcycle. The rear wheels of the truck passed over his lower body and he alleges injuries to his ankle, pelvic region and possible loss of sexual potency.

Ronald Bradke, a shopping center security guard, testified he was standing near the Golden Bear Restaurant about 300 feet from the scene of the accident and saw the truck pull out from the parking lot and turn east straddling the line between the inner left, eastbound lane and the left turn lane with portions of the truck in both of those lanes. He observed plaintiff's motorcycle coming up on the right side of the truck and the truck swerving to its right cutting off the motorcycle which tried to turn away from it but hit the curb and plaintiff left the bike. He immediately went to the scene and found the plaintiff lying on the pavement with his head two to three feet from the curb and his feet about six feet from the curb.

The truck driver, defendant Howard Schneider, testified he had collected trash from service area B of the shopping center, then, intending to go into service area C to collect another trash box, he drove the 25-foot-long garbage truck north on a service road to Lakehurst Road where he stopped at the stop sign and checked for traffic in both directions. Seeing none, he testified he activated his right turn signal and turned east onto Lakehurst Road heading towards the next service area. Since he intended to turn off Lakehurst Road into the entrance of service area C only 100 yards away, he allowed the right turn signal to remain on after he completed his first turn and while driving east on Lakehurst Road. The signal was manually operated and would not automatically go off after use. Mr. Schneider testified he did not look into his rear view mirrors while proceeding east on Lakehurst Road and that he drove at approximately 10 miles per hour. He stated he maneuvered his truck as soon as possible into the curb lane and that at a point 20 to 30 feet east of the place where he had entered Lakehurst Road had his vehicle wholly in the right hand lane of the road. He testified that upon reaching the intersection to service area C his turn signal was still activated and his truck in the right hand lane and he turned to his right into the entrance of that area. He further testified that he did not look into his side view mirror or to the rear before making the turn nor had he looked in that direction at any time while on Lakehurst Road. He first realized there was something wrong when he felt movement to the rear portion of his truck and, looking back, he saw a man lying on the road whom he subsequently learned was the plaintiff, Thomas Madigan, whom he saw then for the first time.

On this appeal plaintiff makes several contentions of error committed by the trial court: (1) that the trial court erred in directing a verdict on the wilful and wanton count of the complaint and withdrawing it from the jury's consideration; (2) that the trial court prejudiced the jury in favor of defendant by asking a juror during voir dire if she could be "cold blooded" and removing her as a juror when she answered in the negative; (3) that the trial court improperly admitted certain exhibits without adequate foundation as to their accuracy; and (4) that the closing argument of defense counsel was improper and prejudicial to the plaintiff.

• 1 In our view the first issue is determinative of this appeal. The trial court found that there was no evidence upon which the wilful and wanton count of plaintiff's complaint could be considered by the jury and directed a verdict in favor of the defendant as to that issue. It submitted to the jury only the issues as they related to ordinary negligence and the jury returned a verdict in favor of defendants. The issue presented to us is whether, applying the standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, to the evidence in this case, the trial court erred in directing the verdict in favor of defendants on that issue. The court there stated that "verdicts ought to be directed and judgments n.o.v. entered 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 based on that evidence could ever stand." (Pedrick, 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.) In its view of the evidence the trial court determined that while the truck driver's conduct demonstrated an error in judgment on his part, he at no time conducted himself in a manner evidencing wilful and wanton conduct towards the plaintiff.

• 2, 3 Wilful and wanton conduct was described in Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293, 300, in this way:

"`A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a 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.' [Citations.]" (Hocking v. Rehnquist (1969), 44 Ill.2d 196, 201, 254 N.E.2d 515, 518.)

It is also well established that whether specific acts or conduct of a party amount to wilful and wanton conduct is ordinarily a question of fact for the jury. (Chmiel v. Pierce (1973), 9 Ill. App.3d 130, 133, 291 N.E.2d 862, 864; Lessen v. Allison (1960), 25 Ill. App.2d 395, 166 N.E.2d 806.) In considering the evidence to determine whether a charge of wilful and wanton conduct ought to have been submitted to a jury neither the trial court nor a reviewing court may resolve conflicts in the evidence, decide what weight to apply to it or decide the relative credibility of the witnesses, but must view all of the evidence in its aspect most favorable to the plaintiff. Unless it can then be said that the evidence so overwhelmingly favors defendant that a wilful and wanton verdict based thereon would never stand the issue should be decided by the jury rather than the court. See Bailey v. City of Decatur (1977), 49 Ill. App.3d 751, 364 N.E.2d 613.

The evidence was conflicting in the present case. If the fact-finder were to accept Schneider's version of the occurrence then it would appear he drove in the right hand traffic lane for some 100 yards with his turn signal operating and then, without looking, made his turn and struck plaintiff's motorcycle which was passing the truck by driving along the curbing. If, however, plaintiff's version of the events, as corroborated by the witness, Bradke, were believed to best represent the facts then it would appear that plaintiff was lawfully passing the truck while traveling in the right lane of the highway when Schneider, without looking, turned into him from the left lane without signaling his turn in sufficient time to permit plaintiff to avoid the truck which struck him.

The facts in Hering v. Hilton (1958), 12 Ill.2d 559, 147 N.E.2d 311, are somewhat similar to our case. The defendant truck driver stopped at a stop sign, looked and saw plaintiff's approaching vehicle, but proceeded across the intersection believing he had sufficient time and distance to make it before that vehicle arrived. He did not. The court rejected the argument that defendant's conduct could not be considered wilful and wanton as it was a mere "error in judgment" as begging the question. It stated the query in such cases is whether defendant acted in disregard of dangers which should have been apparent to a reasonable man when he entered the intersection. The court pointed out that defendant need not have intended any harm should ensue or actually have known for sure that there would be a collision, but that it was sufficient if he had notice which would alert a reasonable man that substantial danger was involved and that he failed to take reasonable precautions under the circumstances. This concept was described in Rowe v. Frazer (1967), 83 Ill. App.2d 367, 377, 227 N.E.2d 781, 786, in these words:

"A wanton act involves a conscious indifference to a known danger. It is based on the concept that under the known or plainly observable circumstances the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation and ignored it. [Citations.]" See Haskett v. Baker (1971), 1 Ill. App.3d 441, 274 N.E.2d 111; Mower v. Williams (1949), 402 Ill. 486, 84 N.E.2d 435; Delany v. Badame (1971), 49 Ill.2d 168, 176-77, 274 N.E.2d 353, 357.

• 4 Under the evidence, taken as we must in its aspect most favorable to plaintiff, defendant Schneider turned from the left lane across the right hand lane as he signaled and without looking to see whether another vehicle was passing his slow moving truck on that side. He had a duty to keep a lookout for other vehicles on the road, to change lanes only when it was safe to do so and to turn off the highway from the right lane rather than from the inner or left lane of traffic. A jury could conclude Schneider was aware of the potential danger implicit in his conduct and chose to disregard it. Under all of the circumstances demonstrated by the evidence we cannot say that it is overwhelmingly in favor of defendants and, therefore, the question of willfulness and wantonness becomes one of fact which should be properly submitted to the jury.

• 5 Because the judgment must be reversed and the cause remanded for a new trial, so that the issue of any wilful and wanton conduct on the part of the defendants can be submitted to a jury, we will discuss only briefly the other issues raised by plaintiff. In his preliminary statements to the panel jurors prior to the commencement of the voir dire examination the trial judge used the phrase "cold blooded" and referred to a jury as being like a computer. Plaintiff objected and the court correctly agreed not to use those terms again and did not do so. We do not regard this perhaps inappropriate description of a prospective juror's qualifications as being of great significance in the context of the trial. While jurors certainly must be objective and not approach the factual determination required of them on a personal basis, the court's attempt to inculcate them with a feeling of objectivity by the use of that language was merely an exaggeration of the correct attitude for the jurors to assume and not an invitation to them to distort the truth. We do not believe any prejudice resulted to the plaintiff by the approach taken by the trial court in this instance.

• 6 Plaintiff also objected to the admission in evidence of a scaled architectural drawing of the Lakehurst Shopping Center which was introduced by the defense in cross-examination of the witness Bradke. This was a matter within the discretion of the trial court and it was not abused in this instance. The exhibit contained working drawings of the buildings, roads, parkways and parking lots of the center and was introduced by an architect who prepared them. He testified that his firm constructed the shopping center pursuant to these plans and to the best of his knowledge they were followed as described thereon. Plaintiff objected to a lack of foundation for their admission contending the exhibit had been prepared long before the construction of the center and that the witness did not personally participate in that construction. Plaintiff, however, made no ...


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