Atz v. Goss

• Decision Date: 05 August 1974
• Docket Number: No. 57917,57917
• Parties: Virginia M. ATZ, Plaintiff-Appellee, v. Sol GOSS and Jay B. Jans, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 29

316 N.E.2d 29

21 Ill.App.3d 878

Virginia M. ATZ, Plaintiff-Appellee, v. Sol GOSS and Jay B. Jans, Defendants-Appellants.

No. 57917.

Appellate Court of Illinois, First District, First Division.

Aug. 5, 1974.

William Parker Ward, Chicago, for appellant, Sol Goss.

Leo J. Spivack and Norman E. Goldman, Chicago, for appellant, Jay B. Jans.

A. T. Walsh and John R. Fielding, Chicago, for appellee.

BURKE, Justice.

This is a personal injury action brought by the plaintiff, a passenger in defendant Jans' automobile, against both Jans and defendant Goss, the driver of the automobile which collided with Jans' car. A jury verdict of $20,000 was rendered against both defendants. Both defendants appeal.

Defendant Jans contends that the court erred in refusing to grant his motions for a directed verdict or judgment notwithstanding the verdict (N.O.V.) and that the verdict as to him is against the manifest weight of the evidence. Defendant Goss contends that the court erred in allowing the plaintiff's attorney to argue the amount of damages for the first time in closing argument, in refusing his instruction on the plaintiff's burden of proof and in giving her instruction, and in allowing plaintiff's medical expert to testify before cross-examination of plaintiff.

On June 19, 1965, at about 5:30 P.M. defendant Jans was driving southbound on Kenton Avenue, a residential street in Lincolnwood, Illinois. Defendant Goss was driving eastbound on Arthur Avenue, also a residential street. The cars collided in the intersection of the two streets. The weather was clear and sunny. Jans had picked up the plaintiff, who was his date, earlier in the day. The plaintiff was sitting partly on the console between the two front bucket seats of Jans' car and partly on the front passenger bucket seat. Another person was seated to plaintiff's right in the passenger's front bucket seat. On the northwest corner of the intersection was a hedge which prevented a clear view of cross-traffic by either driver.

[1,2] We will examine defendant Jans' arguments first. His initial contention is that he should have been given a directed verdict as to liability after the plaintiff's case or judgment N.O.V. Applying the Illinois standard for reviewing a directed verdict or judgment N.O.V, we must determine whether all of the evidence viewed in its aspects most favorable to the plaintiff so overwhelmingly favors defendant Jans that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) The plaintiff was a guest in Jans' car. The Illinois statute applicable to guests at the time of the accident requires proof of wilful and wanton conduct on the part of the host driver before recovery is possible for the guest. (Ill.Rev.Stat.1965, ch. 95 1/2, par. 10--201.) The evidence necessary to support a verdict of wilful and wanton conduct must be such as shows the injury was intentional or the act was committed under circumstances exhibiting a reckless disregard for the safety of others. Schneiderman v. Interstate Tr. Lines, 394 Ill. 569, 69 N.E.2d 293.

Defendant Jans testified that he looked to the west when he was about 100 feet from the intersection. He could see through the hedge at the end of the street, although only to a limited extent. He saw no cars on Arthur approaching the intersection with Kenton. The same was true when he looked west a second time at a point about 30 feet north of the intersection. His view at that time was also impeded by the hedge on the northwest corner of the intersection. As he entered the intersection he looked west for the third time and saw no approaching vehicles. He stated that the sun was then at treetop level and hindered his vision of Arthur Avenue to the west. He also stated however that he could see one-half block west on Arthur in spite of the sun. He testified that he was just past the center line of Arthur when he first saw Goss' car, which was about two car lengths away, and the collision occurred 1 1/2 seconds later. His car was struck in the right rear. Damage to Jans' car was in the area of the right rear wheel and towards the rear of the car.

Defendant Goss testified that he could not definitely set a speed of Jans' car, that the speed was between 20 and 50 miles per hour. He could not say which car entered the intersection first. Goss said that he slowed down when he first saw Jans' car. Both the plaintiff and defendant Jans testified that Jans' car was going 20 miles per hour, the posted speed limit, or slower, and that his car entered the intersection first.

[3,4] The issue of wilful and wanton conduct depends on the facts in the case. (Ficht v. Niedert Motor Service, Inc., 34 Ill.App.2d 360, 181 N.E.2d 386.) In that case the speed of the host driver was an issue. As in the instant case, however, the defendant's speed was but one circumstance to be considered in determining whether the driver's conduct was wilful and wanton. The cases cited by the plaintiff are not compelling. We find that the issue as to Jans' alleged wilful and wanton conduct should have been taken from the jury. Having reached this conclusion, we need not discuss defendant Jans' second argument, that the verdict was against the manifest weight of the evidence.

[5-8] We now turn to the contentions of defendant Goss, who was found by the jury to be negligent. He was not charged with wilful and wanton conduct. His first argument is that it was error for the court to allow plaintiff's attorney to mention a specific award of montary damages for the first time in closing argument. The extent and content of counsels' arguments to the jury are generally left to the trial court's discretion. Unless there is a clear abuse of that discretion so that the...