Storck v. Northwestern Nat. Casualty Co.

• Decision Date: 15 November 1940
• Docket Number: No. 7362.,7362.
• Parties: STORCK v. NORTHWESTERN NAT. CASUALTY CO.
• Court: U.S. Court of Appeals — Seventh Circuit

115 F.2d 889 (1940)

STORCK v. NORTHWESTERN NAT. CASUALTY CO.

No. 7362.

Circuit Court of Appeals, Seventh Circuit.

November 15, 1940.

L. A. Tarrell, of Milwaukee, Wis., for appellant.

Arthur Wickham, of Milwaukee, Wis., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from a judgment dismissing plaintiff's cause of action on motion for a directed verdict. The action was brought to recover damages for personal injuries sustained by the plaintiff while riding as a guest in an automobile operated by one Harold Lang, who was insured by the defendant.

The personal injuries were the result of an accident which occurred on U. S. Highway 41 in Lake County, Illinois, and plaintiff, in order to recover, must bring himself within the purview of Section 58a of Chap. 95½ of the Revised Statutes of the State of Illinois for 1937, which, so far as here material, provides that no person riding as a guest shall have a cause of action for damages against the driver of an automobile, unless such accident shall have been caused by the willful and wanton misconduct of the driver, and unless such conduct contributed to the injury.

The cause was tried to a jury, and at the close of the testimony, defendant moved for a directed verdict, upon which the court reserved its ruling. The cause was submitted to the jury who were unable to agree upon a verdict. Thereafter, defendant's motion for a directed verdict was allowed.

The rule in Illinois is well established that in passing upon a motion to direct a verdict, the evidence and reasonable inferences to be drawn therefrom must be considered in the light most favorable to the party against whom the motion is directed. A similar rule prevails in Wisconsin where the case was tried. Trautman v. Charles Schefft & Sons Co., 201 Wis. 113, 228 N.W. 741. With this rule in mind, we will briefly state the material facts favorable to plaintiff.

On the day of the accident, Lang, one Schultz, and plaintiff, all young men, were returning to their homes in Wisconsin from a week end visit in Chicago. They started home on Sunday afternoon, October 3, 1937, and traveled north on U. S. Highway 41. This highway has four lanes for traffic, two for northbound and two for southbound, separated by a grass plot. At the point of the accident, these lanes form an overpass for a highway extending east and west. A person driving north on Highway 41 and desiring to turn either east or west on the intersecting highway is required to turn to his left and beyond the northbound highway to what is called a ramp, which is a highway between the northbound and southbound lanes on Highway 41, sloping downward and intersecting the east and west highway. Between the lanes for northbound traffic on Route 41 and this ramp is a concrete retaining or dividing wall surrounded by a plot of grass, and around the latter is a concrete curb six or eight inches in height. We fail to find in the record the size or dimensions of the concrete wall, but it is disclosed that it stands on an elevation and may be seen for a considerable distance by drivers approaching it from the south. One witness working on a house 300 yards or more southeast of the wall testified that he could see it at the time of the accident.

At the time the party left Chicago, they had planned to take Schultz to Burlington, Wisconsin, where he could take a train home. What distance that was, or how much time they had to make the trip, the record does not disclose, but plaintiff testified they were "hurrying along." Before leaving Chicago the party visited a tavern. This was plaintiff's first trip over the highway. Plaintiff testified that as they proceeded north on the highway, Lang had been passing cars right along, and at one point the speed was 65 miles per hour. At that time plaintiff said to Lang: "Take it easy, I would rather get there in one piece than not get there at all." Lang then reduced the speed to 40 miles, and about fifteen minutes later, Schultz said to Lang: "For God's sake, slow down," and at that time the speedometer again showed 65 miles per hour; that there was a swinging of the car from side to side and that was the last plaintiff remembered.

Immediately before the accident the car turned to the left of the lanes for northbound traffic, ran over the concrete curb and crashed into the concrete wall. The right front end of the auto collided with the left side of the wall. The automobile was demolished and Lang and Schultz were instantly killed. Plaintiff was unconscious for three months. On cross-examination, he was unable to describe in detail the territory surrounding the highway at and south of the point where the collision occurred.

Defendant produced three witnesses who were traveling on the highway a short distance south of the point of the accident and who contradicted plaintiff's testimony to some extent, especially as to the speed the car was being operated. One of such witnesses placed the speed from 45 to 48 miles per hour a short distance south of the place of collision. We do not think, however, it is necessary to relate in detail their testimony. The weight to be attached to the testimony of the witnesses, as well as their credibility, was a matter for the jury. For the purpose of deciding the question raised on this appeal, we must, as stated, view the evidence in the light most favorable to the plaintiff.

In addition to the facts stated, it may be pertinent to point out that the accident occurred shortly before sunset on a clear day. About 300 feet south of the point of collision, there was located on the shoulder a sign warning persons traveling north as to the highway intersection. There was a skid mark made by the Lang car for a distance of about 23½ feet, and which extended to the point of collision. After the car had been towed to a garage, it was discovered that the right front tire was blown out. There were no cars either passing or meeting the Lang car at or near the point of collision. There was nothing to obstruct Lang's view of the highway, nor to detract his attention at or immediately prior to the time of collision.

Appellant contends that the circumstances related required a submission of the case to the jury, while appellee contends to the contrary. A solution of the opposing contentions involves a construction of the Illinois act to which we have referred. Was there evidence, together with such reasonable inferences as might be drawn therefrom, that the accident was caused "by the willful and wanton misconduct" of Lang? It thus seems important to study the decisions of Illinois as to the construction placed upon this language by its courts. This statute, so far as we are advised, has not been construed by the Supreme Court of Illinois. As to what constitutes willful and wanton negligence, however, has...