APPEAL from the Circuit Court of DeKalb County; the Hon. CARL
A. SWANSON, JR., Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 10, 1981.
___ N.E.2d ___ Bret L. La Pointe was injured when he was struck by a truck driven by James H. Boddy. He sued Boddy and the City of DeKalb, alleging negligence on the part of Boddy as well as willful and wanton misconduct in operating his vehicle and negligence and willful and wanton misconduct as to the City of DeKalb (hereinafter City) for improper maintenance of the highway on which the accident occurred. The jury found Boddy not guilty but in a general verdict found against the City and awarded plaintiff a verdict of $225,000. The City appeals from the judgment against it and the plaintiff cross-appeals from the verdict for Boddy and from the trial court's order denying his motion to vacate the judgment against the City and to grant a new trial on the issue of damages only.
The issues as set out in the City's brief are as follows:
(1) Whether the City was guilty of willful and wanton misconduct as a matter of law;
(2) Whether the plaintiff was guilty of contributory negligence as a matter of law;
(3) Whether the plaintiff was guilty of willful and wanton misconduct as a matter of law;
(4) Whether the trial court properly denied the City's motion for a directed verdict on the question of willful and wanton misconduct of the City and whether submission of that count to the jury was prejudicial,
(5) Whether the trial court held correctly on certain objections to evidence and whether the jury's verdict was contrary to the manifest weight of the evidence, thus requiring a new trial.
The plaintiff was a student at Northern Illinois University at DeKalb on September 6, 1977, when the accident occurred. He lived in an apartment building near the university and was riding his bicycle south in the northbound lane of Annie Glidden Road (a City road) when the truck of Boddy, coming north on that road, caused him to leave the road and go onto the shoulder. The shoulders on Annie Glidden Road are loose gravel, and when the plaintiff went onto the shoulder with his thin-tire 10-speed bike, the bike skidded, throwing him onto the highway, where he was struck by Boddy's truck and injured so that he eventually had to have his right arm amputated.
Originally, only James H. Boddy, the driver of the truck, was named as a defendant in the complaint. About a year later, the first amended complaint was filed naming the City as a defendant, proper notice having been given to the City of the accident. This complaint was followed by a second amended complaint and then a third amended complaint adding a count of willful and wanton conduct against the City. The theory of the case against the City was that since Annie Glidden Road was within the city limits it was the responsibility of the City to maintain that road in a safe manner and that because of the gravel shoulders along the road and the difference in height between the pavement and the shoulder — at places as much as three to four inches — the road was not in a safe condition, therefore the City was negligent and its negligence was the proximate cause of the accident.
At the trial there was testimony that there was a difference in level between the shoulder and the asphalt pavement, amounting to several inches — there is a dispute as to whether the difference was three to four inches or only two inches at the point of the accident. An expert witness testified for the plaintiff that Illinois Road Engineering Standards recommended that shoulders be asphalt or other suitable material. However, the road was not constructed by the City, and it had simply come under its jurisdiction after annexation. It was a township road when it was constructed. Whether it was the duty of the City to improve the construction was a question not determined. The plaintiff testified that he had ridden as far south toward his home as possible on the sidewalk but after the sidewalk ended — just south of a railroad viaduct — he decided to ride in the east lane — the northbound lane — of the highway in order to face traffic as he was apprehensive about vehicles coming up behind him when he could not see them. The weather was dry and clear and the visibility good. The plaintiff rode close to the east side of the road, trying to stay on the white line along the edge of the pavement. He was maintaining a speed of around 15 miles an hour and was carrying a knapsack with books in it on the handlebars on the right side. As the Boddy truck came toward him and did not swerve to the center of the road to give him room, the plaintiff decided he would have to leave the pavement. He rode off onto the gravel shoulder and immediately experienced difficulty controlling his bike. As the plaintiff described it in his testimony:
"Well, as was my experience with 10-speed bikes, once your rear tire gets into loose material there's a lot of trouble in steering. When it came off the side of the road and the tire kicked out from the edge and hit that gravel, and at that point I wasn't in very good control of the bike."
At the close of all of the evidence, both defendants and the plaintiff filed motions for a directed verdict which were denied, and the case proceeded to verdict. The City submitted a special interrogatory as to the contributory negligence of the plaintiff, but the judge refused to give it. The case was submitted on a general verdict form and the jury returned a verdict ...