McCarty v. O.H. Yates & Co.

• Decision Date: 15 April 1938
• Docket Number: Ag. No. 15.
• Citation: 294 Ill.App. 474,14 N.E.2d 254
• Court: United States Appellate Court of Illinois
• Parties: MCCARTY v. O. H. YATES & CO., INC.

294 Ill.App. 474

14 N.E.2d 254

MCCARTY

v.O. H. YATES & CO., INC.

Ag. No. 15.

Appellate Court of Illinois, Fourth District.

March 9, 1938.

Rehearing Denied April 15, 1938.

Appeal from Circuit Court, Madison County; D. H. Mudge, Judge.

Suit by Everett B. McCarty against O. H. Yates & Co., Inc., for injuries from a collision between plaintiff's automobile and defendant's truck, and for damage to the automobile, wherein defendant filed a counterclaim for damage to the truck. From a judgment for plaintiff, defendant appeals.

Affirmed. Terry, Gueltig & Powell, of Edwardsville, for appellant.

Robert W. Tunnell, of Edwardsville, for appellee.

EDWARDS, Justice.

Plaintiff brought suit against defendant to recover damages for personal injuries sustained as a result of a collision between a car in which he was riding and a truck belonging to defendant. There was a jury verdict for plaintiff in the sum of $10,000; the trial court required a remittitur of $2,500, which plaintiff accepted. Judgment was entered for $7,500, and defendant appeals.

The complaint as amended, consisting of a single count, charged both general negligence, and willful and wanton misconduct, as a basis for suit. Defendant in answer denied both negligence and wantonness on its part, and also denied agency of the driver at the time of the collision, averring contributory negligence as well as wanton misconduct of plaintiff, and alleged a counterclaim for damages sustained by reason of injuries to its truck.

Plaintiff's contention is that he was riding westerly with Mr. and Mrs. Carl Morgan, on a bright clear day, along U. S. Highway 67, about a mile and a half west of Alton and at a point about 140 feet east of an unpaved, though improved, highway known as Levis Lane, which, running from the south, extended to and ended at the south line of said Highway 67; that a truck belonging to defendant, and operated by Barzilla P. Parish, its servant, who was accompanied by another of its employees named Virgil Wright, came suddenly out of Levis Lane at a high rate of speed, without coming to a stop, although there was a stop sign at the south line of said paved highway, went clear across the pavement and then turned east on the north or left side of the highway; that as it progressed easterly it was veering from side to side and traveling 30 miles or more an hour; that when plaintiff saw its approach his car was going in the neighborhood of 50 miles per hour; that he decreased his speed, and in an effort to avoid defendant's truck he turned to the left; that defendant's driver did likewise at the same time; and that the cars collided on the south side of the pavement. As a result Mr. Morgan, riding with plaintiff, and Parish, driver of the truck, were killed, and plaintiff was injured as will be hereafter discussed.

Defendant asserted that its truck was at no time on Levis Lane, but that it had progressed easterly along route 67 for miles without turning off the pavement, and that it was on the south or right side of the cement slab; that plaintiff was driving at 50 or 60 miles an hour down the middle of the pavement and over the black line; that Parish slowed down and sounded his horn; and that plaintiff's car, without diminishing its speed, struck the truck on the south side of the highway.

The pavement at the time was unobstructed, visibility was good, and there was nothing to impede the view of the driver of either car at the time of and just before the accident, which occurred at about 4 o'clock on the afternoon of May 6, 1936.

There is evidence tending to sustain, as well as to contradict, both contentions; the proof upon the essential questions being in conflict.

Defendant at the close of plaintiff's case, and again at the conclusion of all the evidence, moved for a directed verdict. These motions the court denied and the rulings are assigned as error.

In order to warrant a trial court in directing a verdict for defendant, it must appear that there is no evidence fairly tending to prove the plaintiff's case. The court, in considering the motion, is strictly limited to determining this fact, and this alone. He may not weigh the evidence, as to do so would trench upon the province of the jury who are judges of the facts. Kinsey v. Zimmerman, 329 Ill. 75, 160 N.E. 155;Streeter v. Humrichouse, 357 Ill. 234, 235, 191 N.E. 684.

Whether defendant was guilty of negligence, and plaintiff omitted to use due care for his own safety and thereby contributed proximately to the injury, were questions of fact, and could only become matters of law when it could be said that all reasonable minds would concur that there was no want of due care on the part of defendant, or that plaintiff had failed to use the care or caution for his own safety which a reasonably prudent person, under the same or similar circumstances, would have exercised. Thomas, Adm'r v. Buchanan, 357 Ill. 270, 192 N.E. 215.

We think the facts and circumstances, as disclosed by the evidence, raised a fair question of whether defendant was negligent, and also whether plaintiff was guilty of contributory neglect, and that as to such matters the motions were properly overruled.

Defendant earnestly asserts that there was no proof of willful or wanton misconduct on its part, and that as to such part of the charge the motion should have been sustained.

There was testimony on behalf of plaintiff that defendant's truck came out of Levis Lane onto the highway, disregarding the stop sign; that its driver had a clear view both east and west; that without stopping it ran to the north side of the pavement and off onto the shoulder, and then turned east on the left or wrong side of the road; that it gave no warning and veered over the entire surface of the pavement.

Where a person by his conduct is guilty of such absence of care as exhibits indifference to the consequences of his acts, a case of legal willfulness and wanton misconduct is made out. Heidenreich v. Bremner, 260 Ill. 439, 103 N.E. 275;Wabash R. Co. v. Jones, 163 Ill. 167, 45 N.E. 50.

In Mantonya v. Wilbur Lumber Co., 251 Ill.App. 364, upon page 369, the facts were quite similar to those of the instant case, and the court stated: “It is a matter of common knowledge that paved State routes are heavily traveled. The general use by the public of a highway, so as to create a probability of the presence of people, requires the exercise of a higher degree of care in approaching such places, than is required at places less frequently traveled, * * * and might make an act which would otherwise be merely negligent so reckless as to indicate a disregard for life or a general disposition to do injury. * * Under the evidence in this case, it was a question for the jury to say whether or not the truck driver was guilty of wilful and wanton misconduct in driving onto the slab directly in the...