Rosbottom v. Hensley

• Decision Date: 20 July 1965
• Docket Number: Gen. No. 10612
• Citation: 209 N.E.2d 655,61 Ill.App.2d 198
• Parties: Helen ROSBOTTOM and Blanche Mitchell, Plaintiffs-Appellees, v. Clara HENSLEY, Defendant-appellant.
• Court: United States Appellate Court of Illinois

Page 655

209 N.E.2d 655

61 Ill.App.2d 198

Helen ROSBOTTOM and Blanche Mitchell, Plaintiffs-Appellees, v. Clara HENSLEY, Defendant-appellant.

Gen. No. 10612.

Appellate Court of Illinois, Fourth District.

July 20, 1965.

Gillespie, Burke & Gillespie, Springfield, for defendant-appellant.

Drach, Terrell & Deffenbaugh, Springfield (George E. Drach, Springfield, of counsel), Giffin, Winning, Lindner & Newkirk, Springfield (James M. Drake, Springfield, of counsel), Howarth, Howarth & Walbaum, Springfield (John E. Howarth, Springfield, of counsel), for plaintiffs-appellees.

TRAPP, Justice.

Defendant appeals from judgments entered in favor of plaintiff Helen Rosbottom, in the sum of $2,500, and Blanche Mitchell, in the sum of $27,500 respectively. Defendant contends that the trial court erred in denying her several motions to direct a verdict, to enter a judgment notwithstanding the verdict and to grant a new trial.

The plaintiffs filed separate actions which were consolidated for trial. The substance of the complaints is that the plaintiffs were each guest occupants of the automobile driven by the defendant, and that the latter wilfully and wantonly failed to maintain proper control of the automobile which she was operating, and failed to maintain a proper lookout in such manner as to keep the said automobile on the paved portion of the highway.

The defendant tendered, and the court submitted a special interrogatory to the jury in the following language: 'Was the Defendant, Clara Hensley operating her automobile in a wilful and wanton manner at and immediately prior to the occurrence in question?' The jury answered such interrogatory 'Yes'.

The injuries occurred when the automobile driven by the defendant struck a tree while traveling on South Grand Avenue in Springfleld, Illinois. Defendant, in argument, described South Grand Avenue as a 'built-up residential street', and the defendant testified that in traveling east on South Grand Avenue, 'There is one lane and a parking lane.' However, a plaintiffs' exhibit of the scene shows a 'No Parking' sign within a very short distance of the tree that she struck. There is also evidence that this portion of South Grand Avenue is used as a State Highway, that commercial buildings are upon the street in the area, that there were traffic lights as close as one block west of the point of collision, and that the entrance upon South Grand Avenue, through intersecting streets, was controlled by stop signs. Upon cross-examination, the defendant testified that South Grand Avenue 'sometimes' is a busy street. An investigating officer, in behalf of the plaintiffs, testified on cross-examination, that church had just let out.

The evidence of the nature of the city street and the surrounding area seems relevant to be considered in determining the degree of care required by the operator of the automobile, having in mind its traffic use and capacity.

The events on Sunday, August 16, 1961, leading up to the collision with the tree and the injuries sustained by the plaintiffs, may be summarized: The defendants and the plaintiffs agreed that they would take a trip in defendant's car, that they would take an aged neighbor of the defendant known by all as 'Grandma Marriott' to St. Joseph's Home to visit friends and then the plaintiffs and the defendant would go shopping. They commenced the journey with plaintiff Blanche Mitchell being in the rear seat, the plaintiff Helen Rosbottom being in the Middle of the front seat, and 'Grandma Marriott' being on the right side of the front seat. In proceeding as first agreed, the car was driven south some distance then turned to travel east on South Grand Avenue some further distance. As the car approached what would prove to be the scene of the collision, 'Grandma Marriott' said she wished to go to the cemetery rather than the St. Joseph's Home. It appears that this change of destination would require the re-tracing of most of the route already travelled, and farther on beyond to the north side of the city.

The defendant testified, in substance, that she had stopped the car for a traffic light at the intersection just west of the scene of the collision and was driving through the gears at a speed of 20 to 25 miles per hour and was traveling in the east bound lane of South Grand Avenue nearest the center of the street when 'Grandma Marriott' advised of her wishes. Defendant testified that following such request to go to the new destination she 'turned her head for a split second' to glance back at Mrs. Mitchell and made a grimace to express her disgust or exasperation.

Defendant further testifies that after turning her head to the right she remembers nothing until the car hit the tree. Examined under Section 60 of the Civil Practice Act, Ill.Rev.Stat.1963, c. 110, § 60, she testified that she never saw the tree prior to the collision. She also testified that the brakes and the mechanical condition of the car were good. There is no evidence that she attempted to use the brakes.

Blanche Mitchell, riding in the rear seat, testified that defendant 'turned around and set her lips like she was disgusted and gave me a glance like that (indicating) for a second or two, and that is all I remember.'

Helen Rosbottom testified that as she sat in the front seat, she was looking forward and did not see the defendant turn her head and that as the car swerved from its path, she, the witness, called 'Clara', but that she recalled no answer.

Vern Coffin, an investigating officer, testified that he talked with the defendant at the hospital and, '* * * as near as I can recall told us she was driving on South Grand Avenue and turned around to talk to a lady in the car and the next thing she knew she had struck the tree.'

Dean Ford, an investigating officer, testified, in substance, that the defendant stated that she was going east on South Grand Avenue and turned to talk to her grandmother and when she did so she lost control of her car and struck the tree.

Upon examination by her counsel, defendant testified that 'at the time I looked back I didn't realize I was doing anything wrong', that she did not relaize that she was turning her head to the rear and that she did not intend to turn her head to the rear.

The elements of wilful and wanton conduct which give rise to the liability of a guest occupant of a motor vehicle under the Illinois Statute (Ch. 95 1/2, sec. 9-201, Ill.Rev.Stat.1961), have been verbalized in the language, or minor variations of the language, found in Bartolucci v. Falleti, 382 Ill. 168 at p. 174, 46 N.E.2d 980 at p. 983:

'Plaintiff's right to recover is, consequently, dependent upon rroof that the accident causing the injuries was occasioned by defendant's wilful and wanton misconduct. Ill will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness. Streeter v. Numrichouse, 357 Ill. 234, 191 N.E. 684; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 138 N.E. 203.'

Defendant's counsel presents the hypothesis that the defendant was not guilty of wilful and wanton conduct as a matter of law under the elements stated, for it is argued that the defendant turned her head for but a 'split second' by reason of the 'distraction' occasioned by the demands of 'Grandma Marriott' as to the change of the destination. It is argued that defendant's own testimony shows that she had no realization that she was turning her head and that she had no intent so to do. It is contended that for such reason we must hold that the action of the defendant was unconscious, spontaneous and inadvertent, and hence could not come within the definition of wanton conduct.

Defendant cites but one Illinois case as authority that turning one's head momentarily to glance to the rear seat does not constitute wilful and wanton negligence. In Lane v. Bobis, 340 Ill.App. 10, 91 N.E.2d 106, two congenial sportsmen, traveling to a sporting event of mutual interest, had placed their respective hunting dogs in the rear seat of the car. The dogs discovered incompatibility and mutual detestation and these feelings were expressed with such violence that they 'created disturbance'. Each sportsman turned to take a hand in the melee. At this time the driver lost control of the car and the companion was killed. It was contended, in behalf of the plaintiff, that the defendant was guilty of wilful and wanton negligence in placing two strange dogs together upon the rear seat. The trial court directed a verdict, which was affirmed, upon the ground that the deceased sportsman was equally guilty of wilful and wanton conduct contributing to cause the injury in placing the dogs in the rear seat. The cited opinion contains no discussion of a momentary lapse of attention, or of the unconscious acts of the defendant. The one Illinois case which has come to our attention in which the issue of alleged inadvertence by reason of distraction of the attention of the driver has been considered, is Simpson v. Marks, 349 Ill.App. 527, 111 N.E.2d 370. The plaintiff presented the theory that the defendant had taken his hand off of the wheel to embrace her. The defendant contended that his attention was distracted by flares set out at the scene of an accident. The court held that under either theory the verdict finding the defendant guilty of wilful and wanton conduct was not against the manifest weight of the evidence....