Hering v. Hilton

• Decision Date: 24 January 1958
• Docket Number: No. 34460,34460
• Citation: 12 Ill.2d 559,147 N.E.2d 311
• Parties: Mary E. HERING, Appellant, v. Garlin HILTON, Appellee.
• Court: Illinois Supreme Court

Page 311

147 N.E.2d 311

12 Ill.2d 559

Mary E. HERING, Appellant, v. Garlin HILTON, Appellee.

No. 34460.

Supreme Court of Illinois.

Jan. 24, 1958.

Lybarger & Collins, Bushnell, and Keith F. Scott, Macomb, for appellant.

Young & Sullivan, Peoria, for appellee.

BRISTOW, Justice.

This court has allowed plaintiff, Mary E. Hering, leave to appeal from a judgment of the Appellate Court (13 Ill.App.2d 132, 140 N.E.2d 737) which reversed a judgment of the circuit court of McDonough County, entered on a jury verdict allowing plaintiff $7,000 as damages for personal injuries sustained in a collision between plaintiff's automobile and the truck driven by defendant, Garlin Hilton.

From the record it appears that on June 4, 1952, around noon, plaintiff Mary E. Hering, accompanied by her father, who died shortly after this accident, was deriving the family car in an easterly direction on a State highway at a speed of about 55 to 60 miles per hour in the country area outside of Bushnell, Illinois. At about a mile and one-half west of Bushnell, the highway, which runs east and west, intersects a gravel road running north and south. Plaintiff testified that as she came over the bridge she saw defendant's truck on the south side of the gravel road, about two feet south of the concrete highway when her car was about 150 feet from the intersection. She stated that defendant was not looking in her direction and she blew her car horn. The truck, however, merely increased its speed as it came onto the highway, so that when plaintiff's car reached the center of the intersection the left front side of her car collided into the middle of the truck, which kept moving in a northly direction and pulled plaintiff's car along with it for several feet. Plaintiff also introduced evidence that defendant was fined for a right-of-way violation arising out of this collision, and her evidence relating to the permanent injuries she sustained was uncontroverted.

According to defendant's testimony, he was driving a Bushnell Township dump truck in a northerly direction along this gravel road, in the course of his work of cutting grass and weeds along the roadways, and had stopped the truck at the stop sign which was on the east side of the gravel road, some 31 feet south of the State highway. He stated that he waited for a truck coming from the east to turn in front of him, and then looked to the west and saw plaintiff's automobile approaching at a distance of about 75 to 80 rods. Believing that he had sufficient time to cross, he proceeded onto the intersection. The evidence is conflicting as to where the collision occurred, with defendant and his witness testifying that the truck was practically across the highway and some 7 or 8 feet onto the gravel road to the north, with only the rear wheels of the truck on the concrete, and with plaintiff testifying that the collision occurred at about the center of the highway.

Plaintiff's suit for damages was originally predicated on a single count charging defendant with negligence in the operation of the truck, which he denied. At the close of plaintiff's evidence, defendant filed an affirmative defense alleging that his work in maintaining the public roads for Bushnell Township relieved him from liability for negligence, and introduced evidence in support thereof. At the close of all the evidence the court allowed defendant's motion for a directed verdict on the basis of the affirmative defense; whereupon plaintiff filed an additional count charging defendant with wilful and wanton misconduct. No further evidence was introduced. Defendant's motion for a directed verdict on the wilful and wanton count was denied, and the jury returned a verdict awarding plaintiff damages in the amount of $7,000. From the judgment entered thereon defendant appealed. The Appellate Court, considering only the propriety of the trial court's denial of the directed vereict on the wilful and wanton count, reversed the cause, and held that defendant was not guilty of such conduct as a matter of law.

Wilful and wanton misconduct has been defined in myriads of cases each one reiterating or embellishing the phraseology of its predecessors. Streeter v. Humrichouse, 357 Ill. 234, 191 N.E. 684; Bartolucci v. Falleti, 382 Ill. 168, 46 N.E.2d 980; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293; Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435; Myers v. Krajefska, 8 Ill.2d 322, 328, 134 N.E.2d 277. One often quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, at page 583, 69 N.E.2d 293, at page 300: 'A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.' In the recent case of Myers v. Krajefska, 8 Ill.2d 322, 134 N.E.2d 277, this court refused to overrule that definition. The court noted that although there are some variations in the phraseology of the definitions of wilful and wanton misconduct in the cases, the basic concept as applied in the case law is the same, and since such conduct is usually a matter of degree, no hard-and-thin-line definition could be made.

In the instant case, in determining whether the wilful and wanton count should have been submitted to the jury, we must measure defendant's conduct by that standard. However, in so doing we cannot consider the conflicts in the evidence, nor its weight or preponderance, nor the credibility of witnesses, but must take that evidence as true which is most favorable to plaintiff's cause of action. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 581, 69 N.E.2d 293. If such evidence and its intendments most favorable to plaintiff tend to establish wilful and wanton misconduct by defendant, then defendant's motion for a directed verdict was properly denied.

Viewing defendant's conduct accordingly, it appears that although he did stop the truck at the stop sign and looked both ways with an unobstructed view, he nevertheless proceeded ahead onto the intersection, after noting plaintiff's car approaching from the west, and without looking again in that direction until the moment of the impact. Furthermore, according to plaintiff's testimony, defendant failed to heed the warning of her car horn which she blew when her car was 150 feet from the intersection and when defendant's truck was still about two feet from the south edge of the highway, but merely accelerated his speed so that the cars collided in about the center of the intersection.

In evaluating defendant's conduct we are cognizant of he obligation of the driver of a vehicle approaching a preferred highway, which has been set forth in Ritter v. Nieman, 329 Ill.App. 163, 67 N.E.2d 417, 421: 'What is the purpose of a stop sign? Certainly, it does not signify that a motorist should stop, and then blindly proceed through a...