Barmann v. McConachie

• Decision Date: 04 March 1937
• Docket Number: Ag. No. 17.
• Citation: 6 N.E.2d 918,289 Ill.App. 196
• Parties: BARMANN v. MCCONACHIE.
• Court: United States Appellate Court of Illinois

289 Ill.App. 196

6 N.E.2d 918

BARMANN

v.MCCONACHIE.

Ag. No. 17.

Appellate Court of Illinois, Fourth District.

March 4, 1937.

Appeal from Circuit Court, Randolph County; A. D. Riess, Judge.

Action by Virginia Barmann against Ralph McConachie. From a judgment for plaintiff, defendant appeals.

Affirmed. L. R. Stewart, of Murphysboro, and P. K. Johnson, of Belleville, for appellant.

William H. Schuwerk, of Chester, for appellee.

MURPHY, Justice.

Plaintiff brought this action to recover damages for personal injuries alleged to have been caused by defendant's willful and wanton negligence in the operation of his automobile at a time when plaintiff was riding with him as his guest.

The first three paragraphs of count 1, all of which are adopted as similar numbered paragraphs in the other four counts, allege in substance that on the night of October 4, 1935, at about 12:30 o'clock, defendant was driving his automobile on the paved highway north of Sparta and that plaintiff, riding as his guest, was sitting in the front seat and went to sleep and that defendant knew she was asleep. The first count alleges that the defendant, being tired, exhausted, and sleepy, knew and was conscious of the fact that he was about to fall asleep and, being conscious that if he did fall asleep while he was operating his automobile it would probably result in injury to others, particularly the plaintiff, and with an entire absence of care for the life, person, or property of others, and with a conscious indifference to the surrounding circumstances and conditions and with willful disregard of the consequences, willfully and wantonly drove his automobile at a speed of approximately 40 miles per hour and that while so operating the automobile the defendant fell asleep, thereby losing control of his automobile and injuring plaintiff. The second count alleges that it was the duty of defendant not to wantonly and willfully injure the plaintiff, yet in disregard of the duty he willfully and wantonly drove his automobile at a speed of 40 miles per hour at a time he knew he was drowsy, sleepy, and about to fall asleep and did fall asleep and lost control of his automobile resulting in injury to plaintiff. The third and fourth counts are similar in substance to the first two counts, and the fifth count charges general willful and wanton negligence in the operation of the automobile. Defendant answered, denying all charges of willful and wanton negligence.

The case was tried with a jury, resulting in a verdict for plaintiff for $6,500. After a remittitur of $1,500 was filed, judgment was entered for $5,000.

The court's rulings on the defendant's motion for a directed verdict and new trial presents the question whether or not the defendant was guilty of willful and wanton misconduct within the meaning of the guest section of the Motor Vehicle Law (Smith-Hurd Ill.Stats. c. 95 1/2, § 58a).

The facts are not in dispute. Plaintiff called defendant for cross-examination under the provisions of section 60 of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 184). His testimony is the only evidence bearing upon the cause of the accident and the alleged negligence.

Defendant, a young man age 24, and plaintiff, a young lady age 20, both resided in Sparta and on the evening of the accident he invited her to accompany him to a dance to be held at a tavern in Chester, a distance of about 20 miles from Sparta. They arrived at Chester about 8 o'clock, each had two drinks of whisky soon after they arrived, but did not drink any more that evening. They danced until about 12 o'clock and started towards Sparta. On the way from Chester to Sparta they concluded to go to Moffat's restaurant, which was 6 or 7 miles the other side; that is, north of Sparta. Soon after this arrangement was made plaintiff told defendant she was sleepy and defendant told her to go to sleep and he would drive. Plaintiff awakened at Sparta, but soon fell asleep and remained asleep until the accident, which occurred about 4 miles north of Sparta and 2 1/2 miles from Moffat's. Defendant testified as follows: “It was about a quarter to one when we left Sparta going to Moffat's. I was sober and had all my mental faculties. I drove to Sparta. Had not driven off the highway and was able to control my car to Sparta. I realized I was sleepy. First realized this about four miles out of Sparta. I did not inform Miss Barmann that I was sleepy. At that time I was driving about forty miles an hour and continued to operate at that speed. I felt at that time as I ordinarily feel when I am about to go to sleep. At that time I would say I was between two and two and a half miles from this restaurant, and I continued driving toward the restaurant. Then the first thing I knew was the crash. After the crash my car was out in the field along side of a telephone post.” When called in his own behalf, he testified substantially as above and added: “When I became sleepy I judge we were about four miles north of town and between a half a mile and a mile from the place of the accident. I kept driving because I thought I could make the rest of the way. I did not intend to go to sleep. I intended to go to Moffat's.” On cross-examination he testified that he thought he could make it to Moffat's before he went to sleep, that he knew he could have a wreck, but that he thought he could get to Moffat's where he could get coffee and something to eat.

Plaintiff testified that she went to sleep after they left Chester, awakened at a stop sign in Sparta, asked defendant where they were and he told her, and she again fell asleep and knew nothing until the accident.

The evidence discloses that the road was level for some distance south of the scene of the accident, that defendant's automobile crossed the pavement to the driver's left, crashed through a wire fence breaking down two or three posts and coming to a stop against a telephone pole. It had traveled 138 feet from where it left the pavement to the place where it stopped.

Section 58a, chapter 95 1/2, Smith-Hurd Ill.Stats.; paragraph 47 (5), chapter 95a, Ill.Rev.Stats.1935, provides that no person riding as a guest shall have a cause of action for damages against the driver of an automobile unless such accident shall have been caused by the willful and wanton misconduct of the driver and unless such conduct contributed to the injury.

In Walldren Express Co. v. Krug, 291 Ill. 472, 478, 126 N.E. 97, 99, it was said: “The words ‘wanton,’ ‘wantonly,’ and ‘wantonness,’ ‘willful,’ ‘willfully,’ and ‘wil...