Makas v. Pagone

• Decision Date: 28 June 1972
• Docket Number: No. 55427,55427
• Citation: 6 Ill.App.3d 532,285 N.E.2d 812
• Parties: Jozef MAKAS, Plaintiff-Appellant, v. Dan PAGONE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 812

285 N.E.2d 812

6 Ill.App.3d 532

Jozef MAKAS, Plaintiff-Appellant, v. Dan PAGONE, Defendant-Appellee.

No. 55427.

Appellate Court of Illinois, First District, Fourth Division.

June 28, 1972.

Philip M. Basvic, Donald L. Johnson, Chicago, for plaintiff-appellant.

Timothy J. Gillick, Pretzel, Stouffer, Nolan & Rooney, Chicago, for defendant-appellee; Joseph B. Lederleitner, Chicago, of counsel.

DIERINGER, Presiding Justice.

The plaintiff, Jozef Makas, appeals from a judgment of the Circuit Court of Cook County entered after a jury returned a verdict in favor of the defendant, Dan Pagone. The jury also answered a special interrogatory finding the plaintiff guilty of contributory negligence.

The issues on appeal are whether the evidence was sufficient to submit a wilful and wanton issue to the jury; whether the verdict and answer to the interrogatory are supported by the manifest weight of the evidence; whether refusing certain of plaintiff's jury instructions was error; whether the court erred in refusing to permit the joinder of the defendant's insurer; and whether the post-trial motion was timely filed.

At about 1:00 A.M. on the morning of September 22, 1964, the plaintiff alighted from the rear exit of a northbound Ashland Avenue bus at the southeast corner of Ashland Avenue and Huron Street in Chicago. The plaintiff testified he crossed Ashland on the south side of Huron by going across with the light and then proceeded north across Huron within the painted lines of the crosswalk. He said he started across Huron from the southwest corner and noticed a westbound car on Huron some distance away on the other side of Ashland. When he was about midway across Huron Street, he saw 'the light from the car.' He attempted to move from the path of the vehicle by turning to his left, but he was struck in the back, on the right side. After being struck he said he was propelled through the air for a distance of 10 to 15 feet.

The defendant testified he was driving on Huron in a westerly direction. He saw a CTA bus stopped at the southeast corner of Huron and Ashland and saw people getting off. He proceeded west ahead of the bus, after stopping at the stop sign. When he arrived at the median strip of Ashland Avenue, he saw no pedestrians and looked to see if there was any southbound traffic before proceeding. He saw a figure running on a northwest angle from the southeast; 'I turned around and there was a figure in front of me.' He stopped as fast as he could but could not stop fast enough. According to the defendant the impact occurred in the southbound lane of Ashland some distance east of the west curb of Ashland. The plaintiff stumbled and fell after the impact but did not fly through the air and came to rest sitting on Huron just inches away from the west line of the west crosswalk passing across Huron.

The plaintiff's argument is based on the defendant's testimony he was not looking for pedestrians at the time of the accident and on speculation that the defendant was traveling too fast. The plaintiff submits the following colloquy discloses the defendant was guilty of wilful and wanton misconduct:

Q. Did you notice any pedestrians on the sidewalk?

A. When they were getting off the bus, yes.

Q. Right, you weren't looking for pedestrians at that point, were you?

A. Not at the median strip.

The plaintiff maintains such conduct is affirmative evidence of a reckless disregard for others in and about the area.

The plaintiff also suggests it may be inferred from the testimony of the plaintiff that Pagone was traveling at too high a rate of speed. Makas testified he first saw the car on the far side of the intersection and assumed it would stop. He then proceeded across the intersection and was struck by that car. He argues the inference is the car must have been traveling at a high rate of speed to cover the distance in such a short time.

It is difficult to summarize the particular circumstances under which a defendant may be found guilty of wilful and wanton misconduct, but one often quoted definition is found in Schneiderman v. Interstate Transit Lines (1946), 394 Ill. 569, 69 N.E.2d 293:

'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.'

That the defendant was not actively looking for pedestrians at the median strip does not constitute wilful and wanton negligence within the above definition. In Larson v. Fell (1965), 55 Ill.App.2d 418, 204 N.E.2d 475, a pedestrian was struck in a crosswalk by an automobile as she crossed the street on a dark and rainy day. The court quoted from Schneiderman and Scarlette v. Hummer (1963), 41 Ill.App.2d 138, 190 N.E.2d 370, and then said:

'This case lacks these attributes of wantonness and wilfulness. The evidence when construed in its aspects most favorable to plaintiff, together with all reasonable inferences arising therefrom, fails to prove a consciousness on the part of the defendant that his conduct would naturally and probably result in injury to another; and, it...