Streeter v. Humrichouse

• Decision Date: 15 June 1934
• Docket Number: No. 22120.,22120.
• Citation: 357 Ill. 234,191 N.E. 684
• Parties: STREETER v. HUMRICHOUSE.
• Court: Illinois Supreme Court

357 Ill. 234

191 N.E. 684

STREETER

v.HUMRICHOUSE.

No. 22120.

Supreme Court of Illinois.

June 15, 1934.

Error to Appellate Court, Second District, on Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge.

Action by Harry S. Streeter, administrator of the estate of Burry J. McGann, deceased, against Calista Humrichouse. To review a judgment in the Appellate Court (270 Ill. App. 181) affirming a judgment for defendant plaintiff brings certiorari.

Reversed and remanded.Eva L. Minor and Miller & Shapiro, all of Kankakee, for plaintiff in error.

John A. Mayhew, of Kankakee, and Mann & Stifler, of Danville, for defendant in error.

FARTHING, Justice.

On September 23, 1927, the deceased, Burry J. McGann, a switchman employed by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, was injured at the crossing of the railroad tracks and Court street (State Highway No. 17), in the city of Kankakee. He died as a result of the injuries he received in a collision between the switch engine on which he was riding and the automobile of the defendant in error (herein called the defendant). Suit was brought by the plaintiff in error, Harry S. Streeter, as administrator (herein called the plaintiff). The declaration contained fifteen counts. At the first trial a verdict of $3,500 was returned in favor of the plaintiff. A new trial was granted. At the second trial the jury returned a verdict in favor of the plaintiff for $10,000. Judgment was entered, and on appeal to the appellate court for the Second District the judgment was reversed and the cause was remanded. Streeter v. Humrichouse, 261 Ill. App. 556. Before the third trial in the circuit court of Kankakee county, the defendant, Calista Humrichouse, filed a special plea setting up a rule of the railway company. This rule forbade employees riding on the leading footboard of a switch engine when they were not actually at work on a switching or yard lead-track. At this trial the jury failed to agree. At the close of the evidence for the plaintiff in the fourth trial the defendant moved for a directed verdict. The court allowed this motion as to the first, sixth, ninth, thirteenth, and fourteenth counts of the declaration, which charged willful and wanton injury to the deceased. This trial resulted in a verdict of not guilty. The motion for a new trial was overruled and judgment was entered in favor of the defendant. The Appellate Court affirmed this judgment, and the cause is here by certiorari.

At approximately 4:45 in the afternoon of the day of his injury, Burry J. McGann was riding on the footboard at the end of the tender of a switch engine on the main track of the railway company. This engine was backing north from the yards south of Court street. Two other members of the switching crew were with him. A man named Tooper was on the footboard at the west, a man named Dufresne was in the middle, and McGann on the footboard at the east, and all were at the northerly end of the tender. The engine was moving at from fifteen to twenty-five miles per hour. Court street crosses the tracks at the point in question in an easterly direction. It is paved with an eighteen-foot concrete slab. The defendant was traveling east on Court street in her Dodge coupe. Her son John, then seventeen years of age, was driving the coupe.

Plaintiff urges three grounds for the reversal of the judgment. The first is that the trial court erred in allowing the motion to direct a verdict as to those counts of the declaration which charged willful and wanton injury. The second is that the trial court improperly admitted in evidence the rule of the railway company in a suit in which it was not a party. The third is that the trial court erred in the giving and refusal of instructions.

The first decision of the Appellate Court reversed the judgment and remanded the case. Since that was not a final decision it was not reviewable by this court. Jones v. Young, 228 Ill. 374, 81 N. E. 1042;People v. Board of Education, 275 Ill. 195, 113 N. E. 965. While it may have constituted the law of the case for the Appellate Court upon the second appeal, it is not binding upon this court in a review of the latter decision. Stripe v. Yager, 348 Ill. 362, 180 N. E. 915;McLaughlin v. Hahn, 333 Ill. 83, 164 N. E. 148.

With reference to the first contention, the rule is that in passing upon a motion to direct a verdict, if, when all the evidence is considered, with all reasonable inferences drawn from it in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case, the motion should be allowed. Williams v. Consumers Co., 352 Ill. 51, 185 N. E. 217, and cases there cited. 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 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 willfulness. Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 138 N. E. 203.

Whether a personal injury has been inflicted willfully or wantonly is a question of fact to be determined by the jury if there is evidence to support the allegation (Heidenreich v. Bremner, 260 Ill. 439, 103 N. E. 275;Illinois Central Railroad Co. v. Leiner, 202 Ill. 624, 67 N. E. 398,95 Am. St. Rep. 266;Chicago, Burlington & Quincy Railroad Co. v. Murowski, 179 Ill. 77, 53 N. E. 572); and whether an act is wanton and willful depends upon the circumstances of each case. The dependant contends that excepting the speed of the Dodge coupe nothing was shown to prove a wanton or willful injury. She relies upon Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Kinnare, 203 Ill. 388, 67 N. E. 826, and cases there cited, and says that they hold that the fact that a train was run in a manner prohibited by an ordinance will not, standing alone, furnish sufficient evidence that an injury was wanton or willful. But in the Kinnare Case we found that other facts were shown in evidence which, taken together with the violation of the ordinance, established a wanton and willful injury.

What were the facts disclosed by the tesimony of plaintiff's witnesses in the case before us? Joseph E. Tooper testified that he saw the Dodge coupe approaching when it was approximately one hundred feet west of the tracks. In his opinion it was traveling at thirty-five miles an hour. It went over the crossing at about the same rate of speed. He said there was no obstruction to the view. His testimony was corroborated by M. L. Dufresne that the engineer blew the whistle four times for the crossing, and the engine bell was, and had been, ringing. Dufresne saw the Dodge coupe when it was approximately one hundred and ten feet west of the tracks. He stated that it was traveling at from thirty to thirty-five miles per hour; that it did not slow down; and that it swerved to the northeast to get around the switch engine. While Tooper was attempting to get out of the way of the automobile, his legs were struck by it and his shins were skinned. Haswell Kibbons, a filling station employee, testified that he heard the engine whistle for the crossing. When it stopped whistling it was about fifty feet south of Court street and the Dodge coupe was one hundred feet west of the crossing. It was traveling at from thirty to thirty-five miles an hour and did not slacken its speed until after it had crossed the tracks. He was filling the gas tank of an automobile at a filling station on the north side of Court street, one hundred feet west of the railroad. He also testified: ‘There was no car east of me or between me and the railroad crossing south of the pavement at the time of the accident.’ A civil engineer, Robert D. Gregg, testified that the distance west from the railroad track to the first building on the south side of Court street was eighty-eight feet. This was a garage, which stood sixty-two feet south of the paved part of Court street. The collision occurred during the daytime. Tooper also testified that by reason of McGann's position on the engine he could not have seen the defendant's automobile approaching without leaning far out from the engine. However, the other two men, Tooper and Dufresne, were in plain view of the defendant. The defendant's son did nothing to avoid the collision, except, perhaps, to swerve his mother's car to the left. He, himself, denied swerving the car.

We cannot agree with the defendant that the speed of the Dodge coupe was the only evidence to support the charge of a willful and wanton injury. We cannot agree that evidence of speed, alone, is insufficient to warrant submitting that question to the jury. In Balsewicz v. Chicago, Burlington &...