Signa v. Alluri, Gen. No. 45818

• Decision Date: 12 May 1953
• Docket Number: Gen. No. 45818
• Citation: 351 Ill.App. 11,113 N.E.2d 475
• Parties: SIGNA v. ALLURI et al. Appeal of ALLURI.
• Court: United States Appellate Court of Illinois

Page 475

113 N.E.2d 475

351 Ill.App. 11

SIGNA v. ALLURI et al.

Appeal of ALLURI.

Gen. No. 45818.

Appellate Court of Illinois, First District, Second Division.

May 12, 1953.

Rehearing Denied May 26, 1953.

Pretzel & Stouffer, Chicago, Charles D. Snewind, Chicago, of counsel, for appellant.

Joseph D. Ryan and Arthur Ryan, Chicago, for appellee.

TUOHY, Justice.

Gaspare Signa sued Arthur Alluri, Albert Alluri, Helen Andrews and Edward Andrews for damages on account of injuries sustained in an intersection automobile accident which occurred May 19, 1948 in Melrose Park, Illinois. Plaintiff was a passenger in the car owned by the defendant Arthur Alluri and driven by his son, defendant Albert Alluri, west on Cortland street, which collided with the car being driven south on 75th avenue by defendant Edward Andrews allegedly as the agent of defendant Helen Andrews. Helen Andrews and Edward Andrews were charged with negligence, Arthur and Albert Alluri were charged with willful and wanton conduct. At the close of plaintiff's case the court directed a verdict in favor of defendant Helen Andrews, and at the close of all the evidence submitted the case to the jury as to the other defendants. The jury returned a verdict of not guilty as to defendants Arthur Alluri and Edward Andrews, and found defendant Albert Alluri guilty, assessing plaintiff's damages at the sum of $17,500. Judgment was entered on the verdict, and motion of defendant for judgment notwithstanding verdict and the alternate motion for new trial were overruled. Appeal is taken from this judgment.

Defendant argues that the evidence fails to establish willful and wanton conduct.

Viewed most favorably from plaintiff's standpoint, the evidence tends to establish the following facts: Plaintiff was employed by defendant Arthur Alluri on a construction job in Elmwood Park. He had been picked up at his home by defendant Albert Alluri and was being driven to the job at the time the accident happened. The morning was bring and sunny. Cortland street runs east and west and intersects 75th avenue, a north and south street, at right angles. Each street is approximately 26 feet wide at the point where the intersection begins, and both are paved. Neither street was a stop street. On the north side of Cortland street and at the east side of 75th avenue were 13-foot parkways and 5-foot sidewalks, and immediately east and north of the sidewalks an azalea hedge extended north and east from the corner for about 100 feet. Defendant Alluri testified that he did not look north into 75th avenue as he approached the intersection. Neither did he sound a horn. There was evidence from which it can be concluded that Alluri could have seen the Andrews car for a distance of 75 feet as he approached the intersection in question, had he looked north. There was testimony that his car approached and entered the intersection at 40 to 45 miles an hour. Defendant Alluri's car struck defendant Andrews' car at the driver's door when the Andrews car was about five feet from the south curb of Cortland street, and the Andrews car rolled over several times.

Defendant Albert Alluri urges that such facts tend to establish at most simple negligence on his part. Inasmuch as plaintiff was a gratuitous passenger in Alluri's car, it was necessary for him to prove willful and wanton misconduct by Albert Alluri in order to recover against Alluri.

The myriad of cases in which the courts of this State have defined willful and wanton conduct afford no simple formula by which its existence in a given case may be ascertained. Defendant argues that the distinction between willful and wanton conduct and negligence is a substantial one to be ascertained by the application of well-measured legal standards. While substantial differences of liability follow the determination of whether negligence or willful and wanton conduct exists in a given case, the determination of the ultimate question itself seems to be marked by a difference of degree rather than of substance. Our courts have defined the doctrine in such general terms as to make it a practical impossibility to apply standards which distinctly trace the line of cleavage between the two, and what has been held to bring one case within the elastic definitions of willful and wanton conduct is of little or no assistance in determining its application to another. In its most general definition willful and wanton conduct has been said to be conduct exhibiting a reckless disregard for the safety of others or a conscious indifference to consequences. Bartolucci v. Falleti, 382 Ill. 168, 174, 46 N.E.2d 980; Schneiderman v. Interstate Tr. Lines, 394 Ill. 569, 583, 69 N.E.2d 293; Mower v. Williams, 402 Ill. 486, 490, 84 N.E.2d 435. In Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, at page 195, 191 N.E. 287, 288, the Supreme Court said:

'In order to constitute willful and wanton misconduct the injury must either have been intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others.' In Lake Shore & M. S. Ry. Co. v. Bodemer, 139 Ill. 596, at pages 606-607, 29 N.E. 692, at page 695, it was held to be equivalent to gross negligence, the court saying:

'What is meant by 'such gross negligence as evidences willfulness?' It is 'such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness.' * * * 'When it is said, in cases where plaintiff has been guilty of contributory negligence, that the company is liable if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable if by the exercise of reasonable care, after a discovery by defendant of the danger in which the injured party stood, the accident could have been prevented, or if the company fail to discover the danger through the recklessness or carelessness of its employes, when the exercise of ordinary care would have discovered the danger and averted the calamity.''

Defendant cites several cases to the effect that the mere fact that a vehicle is driven at a speed prohibited by law will not furnish a sufficient reason for holding that an injury was willful or wanton. Ruwisch v. Knoebel, 233 Ill.App. 526, 529; Blanchard v. Lake Shore & M. S. Ry. Co., 126 Ill. 416, 424, 18 N.E. 799; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510, 516; Illinois Cent. R. Co. v. O'Connor, 189 Ill. 559, 566 59 N.E. 1098. On the other hand, in the case of Streeter v. Humrichouse, 357 Ill. 234, 240, 191 N.E. 684, 687, the court said:

'We cannot agree that evidence of speed, alone, is insufficient to warrant submitting that question to the jury. In Balsewicz v. Chicago, Burlington and Quincy Railroad Co., 240 Ill. 238, at page 249, 88 N.E. 734, we held that it was proper to refuse an instruction which informed the jury that willfulness or wantonness in the infliction of an injury could not be charged to a railroad company merely because of its failure to comply with a speed ordinance, and that a failure to comply with a speed ordinance may or may not establish willfulness or wantonness, according to the rate of speed and the circumstances shown by the testimony.'

It would appear that the true rule in this State is that speed is a circumstance which may be taken into consideration as bearing upon the presence of willful and wanton conduct, and in a given case might of itself establish willful and wanton conduct, taking into consideration the degree of speed with reference to all other surrounding facts and circumstances.

While the question in the instant case, as to whether there is any evidence in the record that defendant Albert Alluri was guilty of willful and wanton conduct proximately causing the accident and injury, is very close, the evidence of the failure of defendant to look to the north prior to the accident, coupled with the speed with which he drove into the intersection, in our opinion raised a question of fact for the jury.

Complaint is made of a number of instructions tendered in behalf of plaintiff and given by the court, and several others tendered by codefendants and given by the court. We have carefully examined the objections to all these instructions and shall confine our comments here to the giving of plaintiff's instruction 13.

This is the highly controversial instruction often commented upon by our courts, which purports to summarize the allegations of the complaint. In order that the result at which we have arrived on this instruction may clearly appear, we consider it advisable to review the various decisions, some conflicting, which have marked the development of our legal theory with reference to instructions acquainting the jury with the issues in an action based on negligence.

It has long been the rule in this State that recovery can be had only on the negligence charged in the complaint. Herring v. Chicago & A. R. Co., 299 Ill. 214, 217, 132 N.E. 792; Both v. Collins, 339 Ill.App. 437, 440, 90 N.E.2d 285. So, too, it has been held error to instruct the jury with reference to negligence 'alleged in the complaint' in the absence of other or further instruction pointing out the negligence charged. Laughlin v. Hopkinson, 292 Ill. 80, 126 N.E. 591; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, 90 N.E. 266; Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 97 N.E. 233; Bernier v. Illinois Cent. R. Co., 296 Ill. 464, 129 N.E. 747; Lerette v....