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Thomas v. Price





APPEAL from the Circuit Court of Whiteside County; the Hon. ROBERT W. CASTENDYCK, Judge, presiding.


On July 16, 1977, Charles Thomas, a nine-year-old boy, was injured when he was struck by a motorcycle driven by John Price. The Thomas boy's next friend filed a complaint against Price in the circuit court of Whiteside County. The complaint alleged that Price was guilty of negligence as well as willful and wanton misconduct. The trial judge directed a verdict in favor of the defendant on the willful and wanton issue, while a jury found the nine-year-old guilty of contributory negligence, thus absolving the defendant of liability on the negligence issue. This appeal is taken as to both decisions.

July 16 was a clear, dry day in the Erie, Illinois, area. Charles and his friend, Kyle Redell, had left their homes after lunch and ridden their bicycles in the ditches adjacent to the Erie-Cordova blacktop. After a few hours of play, the two boys saw a dog which they believed to belong to a neighbor family. The dog was across the road, on the south side of the blacktop. Leaving their bikes on the north side, the boys crossed the road to get the dog.

At approximately the same time, Harold Grunwald was driving his auto eastbound on the blacktop traveling in the southernmost lane, the defendant Price was riding his motorcycle westbound in the northernmost lane, and Steve Snowden was mowing grass on a riding lawn mower approximately 200 feet west of what was to be the place of injury. Then unfolded a sequence of events which undoubtedly occurred with more rapidity than can be recounted here. The boys reached the south side of the blacktop and realized that the dog they suspected of being a neighbor's pet was a different and considerably less affable animal. The look-alike canine began to bark at and chase the pair, who responded by fleeing in fright toward the road, the bicycles, and the hoped-for safety of the blacktop's north shoulder.

Meanwhile, Grunwald was passing Snowden as he noticed the boys running toward the road ahead of him and to his right. He slowed his vehicle so that he could either drive by or stop suddenly, as the exigencies of the developing crisis demanded. When Grunwald cleared the point where the boys were running toward the road, he increased his speed and then noticed the defendant on his motorcycle headed west.

Snowden watched these events from the seat of his lawnmower. He saw the Grunwald car and thought that Charles and Kyle nearly ran into it. The motorcycle came into his view for the first time from behind the Grunwald car. Unfortunately, neither Charles nor the defendant saw one another any sooner, as their paths met north of the center line in the westbound lane of the Erie-Cordova road.

On appeal to this court, the plaintiff urges that these facts, and other aggravating circumstances, precluded the trial court's directing a verdict for the defendant on the issue of willful and wanton misconduct. We are asked to consider the following:

(1) Although the general speed limit at the accident scene was 55 miles per hour, a "Slow Children" sign was posted just east of the accident scene.

(2) The defendant was acquainted with the blacktop and was aware that young children lived in homes adjacent to it.

(3) The defendant admitted that he noticed the Grunwald auto reduce speed but nevertheless continued traveling at approximately 50 miles per hour.

(4) The defendant did not swerve or sound his horn prior to the collision.

We are asked to hold that a jury could have found willful and wanton misconduct in either the defendant's excessive speed, in his failure to prevent impending danger after discovery, or in his failure through carelessness to discover impending danger.

This court recently dealt with the issue of excessive speed as evidence of willful and wanton misconduct in the case of Porro v. P.T. Ferro Construction Co. (1979), 72 Ill. App.3d 377, 390 N.E.2d 958, 960. There, we held that "when speed is at issue, that which distinguishes wilful and wanton conduct from negligent conduct is the degree of speed. Where the speed is grossly fast for conditions, the conduct is wilful and wanton. Short of that, excessive speed constitutes negligent conduct." We there acknowledged, as had been previously stated (Tjaden v. Moses (1968), 94 Ill. App.2d 361, 364-65, 237 N.E.2d 562, 564), that "[w]hile wilful and wanton misconduct as distinguished from negligence may be a matter of degree there is, nevertheless, no doubt that a distinction exists and that courts> are frequently called upon to delineate the boundaries thereof." And so in this case we are asked to determine whether the degree of speed has advanced defendant's conduct beyond the boundaries of mere negligence.

We note initially that in determining the degree of offensiveness exhibited by excessive speed, the surrounding circumstances can be as telling as the actual speedometer reading. (Smith v. Polukey (1959), 22 Ill. App.2d 238, 160 N.E.2d 508.) As an example, driving 55 miles per hour on a given mile of highway may constitute reckless, reprehensible conduct on a damp and foggy night, yet not so on a clear, dry day. Similarly, the posted speed ...

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