Pittman v. Duggan

• Decision Date: 28 February 1949
• Docket Number: Gen. No. 9630.
• Citation: 84 N.E.2d 701,336 Ill.App. 502
• Parties: PITTMAN v. DUGGAN.
• Court: United States Appellate Court of Illinois

336 Ill.App. 502

84 N.E.2d 701

PITTMAN

v.DUGGAN.

Gen. No. 9630.

Appellate Court of Illinois, Third District.

Feb. 28, 1949.

Appeal from Circuit Court, McLean County; William C. Radliff, Judge.

Action by DeWitt Pittman, administrator of the estate of Bobby Pittman, deceased, against James Duggan, for death of plaintiff's decedent resulting from being struck by defendant's automobile. From an adverse judgment, plaintiff appeals.

Judgment affirmed.Wayne C. Townly and Homer English, all of Bloomington, for appellant.

Chester Thomson of Bloomington, and Jasper Gullo, of Springfield, for appellee.

O'CONNOR, Justice.

This case presents an appeal by DeWitt Pittman, administrator of the estate of Bobby Pittman, deceased, plaintiff-appellant, hereinafter called plaintiff from a judgment entered by the Circuit Court of McLean County, on a jury verdict of ‘not guilty’ in favor of defendant-appellee James Duggan, hereinafter called defendant. The jury also found by special interrogatory that decedent was guilty of contributory negligence. The errors relied upon by plaintiff Pittman for reversal can best be evaluated in light of the facts appearing in the record.

Plaintiff's decedent, Bobby Lee Pittman, was a child ten years of age who was in the fourth grade of school at the time of the accident complained of. On the day in question he was struck by defendant Duggan's car on or near a bridge on Route 51 over the Kickapoo, just north of the town of Heyworth in McLean County. Duggan was approaching the bridge from the south and before reaching the point where he struck the child had rounded a curve and had descended a slight incline in the highway. Duggan's speed was not the subject of unanimity among the witnesses. Witness Folger, on direct examination testified to from 55 to 60 miles per hour, but on cross-examination reduced his estimates to 40 to 45 miles per hour, and admitted that even that was a rough guess. Folger's companion, witness Kistner, fixed the speed at around 55 miles per hour. Witness Shirley Quast placed the speed of the defendant's car at about 45 miles per hour. It was undisputed that less than 1/10th of a mile from the bridge and governing traffic in the northerly direction in which defendant was proceeding, was a sign reading ‘End 30 M.P.H. Limit’. It likewise appeared that the view of the bridge was obscured by the curve which brought the highway out of Heyworth in the direction of Bloomington, although for possibly a tenth of a mile before reaching the bridge the road was straight. The record establishes that the weather was clear and the pavement dry.

As defendant's car approached the bridge the action of plaintiff's decedent, Bobby Lee, is established by the testimony of three witnesses: witnesses Dale and Shirley Quast and witness Altes. Bobby Lee and a companion were standing on the west side of the bridge, leaning against the abutment thereof. The boys ran in front of cars and threw a burlap bag in front of one car. It is established that the boys were running back and forth across the road. Altes testified that one boy ran from west to east and from east to west, both times just being missed by cars. Almost instantaneously thereafter, as the deceased was in the act of going to the east side of the road he was struck by defendant's car, which was then on the proper side of the center line, and carried some 70 feet down the road. On these facts plaintiff asks us to reverse the judgment of the court below. Plaintiff submits that reversal is warranted by the court's withdrawal from the jury of the wilful and wanton count (Count V) in the complaint for insufficient evidence; and by the trial court's error in refusing certain of plaintiff's instructions. With these contentions this court cannot agree.

The court has carefully scrutinized the record of this case together with the exhibits incorporated therein and it concludes that the action of the court below in withdrawing the wilful and santon count in plaintiff's complaint cannot be called erroneous. It is undoubtedly true, as plaintiff asserts, that whether a personal injury has been inflicted by the wilful or wanton misconduct of another is a question to be determined by the jury if there is any evidence in the record tending to support such allegations. Streeter v. Humrichouse, 357 Ill. 234, 191 N.E. 684;Illinois Central Railroad Co. v. Leiner, 202 Ill. 624, 67 N.E. 398,95 Am.St.Rep. 266;Schachtrup v. Hensel, 295 Ill.App. 303, 14 N.E.2d 897;City of Lake Forest v. Janowitz, 295 Ill.App. 289, 14 N.E.2d 894. It is also true that the definition of what constitutes wilful and wanton conduct is fraught with grave difficulty and that generalization is almost impossible. Definition has been called as difficult as in the case of negligence itself, and in the nature of things so dependent on the particular facts of each case as not to be susceptible of general statement. Heneghan v. Goldberg, 296 Ill.App. 253, 16 N.E.2d 139;Feinberg v. Chicago B. & Q. R. Co., 300 Ill.App. 278, 21 N.E.2d 26.

A court, however, may be guided by the circumstances of a particular case and a consideration of the current of authority running through the decisions of this jurisdiction. Analyzed by means of these established paths, it is apparent that here there was no evidence of wanton and wilful conduct considered in the light of the circumstances.

From the time when the phrase ‘wilful and wanton’ first appeared in the decisions of the courts of this State, Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500, 22 Am.Rep. 112; see: Green, Illinois Negligence Law III, Wilful and Wanton Negligence (1945) 39 Ill.L.Rev. 197, 200, it has been agreed that wilful or wanton misconduct is such disregard of a known duty necessary to the safety of the person and entire absence of care for life, person or property of others, as exhibits a conscious indifference to the consequences. Bremer v. Lake Erie & Western Railroad Co., 318 Ill. 11, 148 N.E. 862, 41 A.L.R. 1345. But the character of an act as being wilful or wanton is greatly dependent upon the particular circumstances of each case. Illinois Central Railroad Co. v. Godfrey, supra. The party doing the act or failing to act must be conscious of his conduct and be conscious from his knowledge or from surrounding circumstances and existing conditions that his conduct will naturally and probably result in injury. Snedden v. Illinois Central Railroad Co., 234 Ill.App. 234;Gardner v. Kelly, 308 Ill.App. 6, 31 N.E.2d 278.

Turning to the circumstances of this particular case, then, can the conduct of defendant he called wilful and wanton? The court below held it could not and the grounds plaintiff Pittman urges for calling this error, soberly considered, do not justify a different conclusion.

It will be assumed that defendant Duggan was conscious of his conduct. There was no evidence however, that defendant was conscious of his own knowledge that his conduct would naturally and probably result in injury. Defendant did not testify. Can any evidence of constructive wilful and wanton conduct to be found in the circumstances in the case? We think not.

It may well be that evidence of speed alone is sufficient to warrant submitting the question to the jury. Streeter v. Humrichouse, supra. But a review of the cases indicates that speed is of significance to establish wilful and wanton conduct only if it is speed in such an environment as to indicate an entire disregard for the safety of others. Thus in Streeter v. Humrichouse, supra, 30 to 35 miles per hour in the city of Kankakee on a traveled street leading up to a railroad crossing, with possible parked cars obscuring the defendant's view might well be called evidence of wilful and wanton conduct. But defendant Duggan in the case at bar had just departed from the town of Heyworth. The open road through open country lay in front of him. There was testimony that defendant was exceeding the speed limit while passing through Heyworth. The fact that he was exceeding the speed limit in the town of Heyworth was not evidence of negligence as to the plaintiff's decedent; for the latter's position was perhaps a mile beyond the town. Between the town and the place where the child met his death was a sign reading ‘End 30 M.P.H. Limit’. The day was clear. The road in the immediate vicinity was straight. Defendant's speed before striking the child was fixed by the available testimony at 40 to 50, or 40 to 45, or about 55 miles per hour, and it is established that as he proceeded into the open country away from the recognized perils of the city that his speed did not slacken. In view of the environment-the open country, the straight road, the condition of the pavement, and the other factors, defendant's speed was not evidence of wilful and wanton conduct in this case. As the court said in Schachtrup v. Hensel, supra [295 Ill.App. 303, 14 N.E.2d 900], where in discussing the conduct of a driver in the open countryside: ‘It is common knowledge that drivers of cars on a straight paved road with an unobstructed view drive approximately 50 miles an hour and many who drive in excess of that rate of speed are considered careful drivers. * * *’

Plaintiff, however, does not rely on evidence of speed alone. Plaintiff argues that there was evidence that the defendant could have avoided hitting the child who is plaintiff's decedent. Plaintiff calls attention to the facts that there was a place to turn to avoid striking the child (the shoulder of the road), and that defendant could have turned to the right in the direction of the shoulder, as evidenced by the fact that the skid marks of defendant's car were broken and not continuous, thus imputing to defendant an ability to control his car, even though braking. Again, to establish whether this conduct was or was not evidence of wilful and wanton conduct we must place the conduct in its circumstantial context. Illinois Central Railroad Co. v. Godfrey,...