Dertz v. Pasquina

• Decision Date: 27 September 1974
• Docket Number: No. 46379,46379
• Citation: 319 N.E.2d 12,59 Ill.2d 68
• Parties: Loretta Mishka DERTZ, Appellant, v. Eleanora Wagner PASQUINA et al. (Eleanora Wagner Pasquina, Appellee.)
• Court: Illinois Supreme Court

Page 12

319 N.E.2d 12

59 Ill.2d 68

Loretta Mishka DERTZ, Appellant, v. Eleanora Wagner PASQUINA et al. (Eleanora Wagner Pasquina, Appellee.)

No. 46379.

Supreme Court of Illinois.

Sept. 27, 1974.

Rehearing Denied Nov. 26, 1974.

James A. Dooley, Chicago, for appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Bridgman, and Michael K. Murtaugh, Chicago, of counsel), for appellee Eleanora Wagner Pasquina.

DAVIS, Justice:

This case originated in the circuit court of Cook County where the plaintiff was awarded damages of $90,000 against defendant Pasquina on a jury verdict as to the damages only, the trial judge having directed a verdict as to liability of defendant Pasquina, and a verdict in favor of the other defendants. The appellate court (15 Ill.App.3d 470, 305 N.E.2d 54) reversed and remanded the cause. We allowed appellant Dertz's leave to appeal.

The plaintiff received serious injuries when the automobile in which she was a passenger, while traveling at a speed of about 30 m.p.h., failed to complete a sharp left turn, and went into a ditch and stopped only upon hitting a large rock.

The automobile was owned by defendant Helen Migon, d/b/a Cedar Lodge. The remaining defendants were sued individually and d/b/a Cedar Lodge. Helen Migon testified that she gave no instructions to defendant Pasquina concerning the shimmy of the wheels of the car prior to allowing her to drive the car, and that she instructed Pasquina how to use the manual choke and told her to be careful and not speed. The plaintiff and three female companions were paying guests at Cedar Lodge and were given the use of the 1954 automobile for the purpose of going to mass on Sunday morning. Defendant Pasquina and three other girls rode in the car in question from the bus station at Butternut to the lodge and traveled over the road where the accident occurred. They laughed and joked about how the car shook and rattled.

There was testimony that the automobile had recently been taken into a local shop for repairs, and that Helen Migon stated that the car wheels shimmied when driven over 40 m.p.h., and that she was not satisfied with the repair work which had been done on the car. The cause of complaint was that the front wheels of the automobile would shimmy when driven at a speed of more than 40 m.p.h. over the local 'washboard' roads. The accident occurred on one such 'washboard' road. Defendant Pasquina was driving at a speed of 40 to 45 m.p.h. when the car was about 600 feet from a sharp left turn. She had passed a sign warning of the turn and then took her foot off of the accelerator in order to reduce the speed which the car was traveling. When she came to the turn she attempted to turn the steering wheel to the left but the car did not respond. It was then that she applied the brakes and the car left the road and went straight ahead into the ditch after leaving skid marks for about 40 feet.

The trial judge directed the verdict against defendant Pasquina on the theory that the evidence established that the accident was caused solely by her failure to negotiate the curve while traveling at too great a speed, and that the evidence would not support a finding that the plaintiff had been contributorily negligent. The court directed a verdict in favor of the remaining codefendants on the theory that the evidence did not support a conclusion that the condition of the automobile played any part in the accident.

The appellate court did not agree with either conclusion, and held that although the trial court applied Wisconsin substantive law in the case, that Illinois law governed the procedural question, including the standard to be used in determining whether the motion for a directed verdict should have been allowed. Stated in terms of our decision in Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the appellate court could not agree with the trial court that all of the evidence when viewed in its aspect most favorable to the respective opponents, so overwhelmingly favored the movant that no contrary verdict based on that evidence could ever stand.

Defendant Pasquina argues that the question of comparison of negligence under the Wisconsin law is peculiarly within the province of the jury. (Niedbalski v. Cuchna (1961), 13 Wis.2d 308, 108 N.W.2d 576.) However, defendant Pasquina has failed to note that Niedbalski and other cases cited by her recognize that each case turns on its own facts, and that a jury finding can be reversed by the court if necessary. We deem our test enunciated in Pedrick to provide adequate protection from a directed verdict, and that it is proper for the trial judge to direct a verdict, even as to comparison of negligence, if the evidence so requires.

The question then becomes whether the directed verdicts were proper under the Pedrick rule. Defendant Pasquina alleges the existence of several questions of fact which she believes should have been submitted to the jury. First, she alleges that there was a question of fact as to whether the plaintiff was contributorily negligent. We do not so find from the record.

It must be kept in mind from the outset that what we are concerned with in this case is causal negligence, and that the case involves findings as to at least two groups of interested parties. First, the interest of the plaintiff as to each defendant, and second, the interests of the respective defendants among themselves.

In McConville v. State Farm Mutual Automobile Insurance Co. (1962), 15 Wis.2d 374, 113 N.W.2d 14, the Wisconsin Supreme Court enunciated a basic change in that State's law as to automobile guests. The court said:

'* * * (1) The driver of an automobile owes his guest the same duty of ordinary care that he owes to others; (2) A guest's assumption of risk, heretofore implied from his willingness to proceed in the face of a known hazard is no longer a defense separate from contributory negligence; (3) If a guest's exposure of himself to a particular hazard be unreasonable and a failure to exercise ordinary care for his own safety, such conduct is negligence, and is subject to the comparative negligence statute.' (15 Wis.2d 374, 378, 113 N.W.2d 14, 16--17.)

Defendant Pasquina then argues that, on the basis of earlier cases which were involved with the doctrine of assumption of risk, the plaintiff was contributorily negligent. She cites Cleary v. Eckart (1926), 191 Wis. 114, 210 N.W. 267, where it was held that assumption of risk applied if one rides with a driver the person knows to be inexperienced; Poneitowcki v. Harres (1929), 200 Wis. 504, 228 N.W. 126, where the court held that the guest assumes all nonlatent defects, and Sommerfield v. Flury (1929), 198 Wis. 163, 223 N.W. 408, where the court held that a guest entering into an automobile takes it with the defects not known to the host.

Defendant Pasquina claims that the plaintiff was contributorily negligent for failing to keep a proper lookout, and cites Vandenack v. Crosby (1957), 275 Wis. 421, 82 N.W.2d 307. The basis for this allegation is the plaintiff's testimony that at the time of the accident she, the plaintiff, was seated in the front seat but was facing the rear seat. It strains credulity to say that a plaintiff may not turn her head from the front to engage in conversation with persons riding in the back seat without being deemed contributorily negligent in causing an accident.

Defendant Pasquina also claims that the plaintiff was contributorily negligent in that she allegedly proceeded in the face of known dangers. Two separate bases of danger are alleged. One is that the plaintiff knew Pasquina to be an inexperienced driver, and the other is that the plaintiff knew that the automobile was defective. The evidence that Pasquina was an inexperienced driver is the testimony that she had trouble starting the car, and received instructions on how to operate a manual transmission and choke, that she had previously only driven in large cities, and had no experience driving on the rough back roads of Wisconsin. We fail to see how these allegations, if true, could be deemed to be causal. The various parties allege that Pasquina was either driving too fast, or that the steering...