APPEAL from the Circuit Court of La Salle County; the Hon.
WILLIAM P. DENNY, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
After trial by jury in La Salle County involving a collision of motor vehicles, a verdict was returned for the defendant, Garland Bachman, and the plaintiffs, Frances Trillet and Arthur J. Trillet, Jr., executor of the estate of Arthur W. Trillet, deceased, perfected this appeal.
On May 7, 1976, the plaintiff Frances Trillet was with her husband, the owner and a passenger in an automobile being driven north on what is known as "plank road." The road is a two-lane concrete highway stretching from the city of Peru to and beyond Interstate Highway 80. A first cousin of Mrs. Trillet, Mr. Baker, was driving the motor vehicle. Mrs. Trillet as a passenger was in the right front seat and her husband, Arthur W. Trillet, was seated directly behind her. Mrs. Baker was also in the back seat behind her husband. On the date of the accident Mrs. Trillet was but a few weeks shy of her 68th birthday. The Trillets and the Bakers were all going to an A.R.R.P. (an association for retirees) meeting which was to be held at the Peru Armory which is located on the west side of "plank road" and north of the city of Peru. When the Trillet vehicle came to the armory driveway Mr. Baker activated his left turn signal and stopped in the northbound lane of traffic. Mr. Baker remained at a complete stop for some period of time, then unexpectedly drove the Trillet vehicle into the southbound lane of traffic, at which time it was almost instantaneously struck by the vehicle being driven by the defendant Bachman. Mrs. Trillet received crushing injuries, as did her husband, who in addition suffered a heart attack. Medical testimony was adduced that Mr. Trillet's death was attributable to the accident.
During the course of the trial Mrs. Trillet testified that she had driven a car since she was 15 years old until 1973 when she suffered a stroke. Based upon her driving experience she believed herself capable of judging the speed of a car and her opinion was that the Bachman vehicle was traveling at about 65 miles per hour when it was probably 50 feet or more from her car just prior to the collision. She further testified that when she first saw the Bachman vehicle it was approximately one-half mile away.
Defendant Bachman in his testimony denied that he was ever driving 65 miles per hour but that on the contrary he was at all times within the posted speed limit. It was Bachman's testimony that when he first saw the Trillet vehicle he was going between 45 and 50 miles per hour and that he began decreasing his speed because he was approaching a 40-mile-perhour zone. It was his further testimony that when the Trillet automobile began its turn he was approximately 140 to 150 feet from it, that he started to apply his brakes, blew his horn and headed for a ditch. Bachman also testified that he visited the scene of the accident about a week later and noticed skid marks left by his car which he estimated to be about 120 to 130 feet in length.
Evidence established that at the time of the accident it was daylight and visibility and road conditions were good.
Additional facts and the procedural aspects of the trial of this case will be set forth as they become pertinent to the determination of this appeal.
The plaintiff raises several issues in this appeal, and we will first consider the contention that the trial court erred in failing to direct a verdict in favor of the plaintiffs on the issue of contributory negligence.
The trial court did deny a plaintiffs' motion for a directed verdict on the issue of contributory negligence and further gave the jury (over plaintiffs' objections) two instructions tendered by the defendant on this precise issue. During closing argument, counsel for the defendant, in arguing contributory negligence, stated:
"There simply wouldn't have been an impact, if Mr. and Mrs. Trillet had been doing what the owner of a car, riding as a passenger, should do, and that is exercise some control on how that car is operated."
It is the contention of the plaintiffs that these remarks of counsel for the defendant do not correctly state the law and consequently the error of the trial court in refusing to direct a verdict for the plaintiffs on the issue of contributory negligence was compounded. For reasons hereinafter set forth we agree with the plaintiffs.
• 1 In support of the argument that error was committed by the trial court on the contributory negligence issue, the plaintiffs rely on the case of Bauer v. Johnson (1980), 79 Ill.2d 324, 403 N.E.2d 237. Plaintiffs' reliance on the law set forth in this recent case of our supreme court is well taken. In Bauer the court set forth the historical background relating to the duty of a passenger to control and warn the driver of a vehicle of a dangerous situation. Historically such duty was predicated upon various theories, i.e., master-servant, principal-agent, or joint enterprise relationships. Finally, in Palmer v. Miller (1942), 380 Ill. 256, 43 N.E.2d 973, it was established in Illinois that owner-passenger could be liable for the negligence of a driver if the passenger negligently failed to control the driver. The case of Bauer does not abolish the liability of a passenger-owner who fails to warn or control a driver, but does make it clear that mere presence of a passenger-owner who fails to warn or control does not impose liability per se upon that individual.
In Bauer our supreme court in summarization stated:
"In sum, a plaintiff passenger in a vehicle will be barred from recovery if the negligence of the driver is a legally contributing cause of harm and if the plaintiff was negligent in failing to control the conduct of the driver. The passenger's ownership of the car is relevant only insofar as it is a circumstance which gives the passenger reason to believe that his or her advice, directions or warnings would be heeded. (Restatement (Second) of Torts sec. 495, comment e (1965).) But no passenger has a duty to keep a lookout or to control the driver unless the plaintiff knows or ...