{ "id": 2848085, "name": "Claud Street, Admr. of the Estate of Larry Lee Byers, Deceased, et al., Plaintiffs-Appellees, v. Keith Finney et al., Defendants-Appellants", "name_abbreviation": "Street v. Finney", "decision_date": "1973-01-31", "docket_number": "No. 11452", "first_page": "638", "last_page": "644", "citations": [ { "type": "official", "cite": "9 Ill. App. 3d 638" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "284 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill.App.3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466239 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0166-01" ] }, { "cite": "226 N.E.2d 655", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill.App.2d 170", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2556297 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0170-01" ] }, { "cite": "161 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334608 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0287-01" ] }, { "cite": "274 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.App.3d 944", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2755328 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0944-01" ] }, { "cite": "117 N.E.2d 833", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "1 Ill.App.2d 466", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5115571 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ill-app-2d/1/0466-01" ] }, { "cite": "161 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "247 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill.App.2d 300", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595884 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0300-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill.2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "211 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill.App.2d 117", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5297296 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/63/0117-01" ] }, { "cite": "160 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill.App.2d 238", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5201623 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/22/0238-01" ] }, { "cite": "162 N.E.2d 362", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.2d 587", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334542 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0587-01" ] }, { "cite": "205 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill.2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2840708 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0380-01" ] }, { "cite": "147 N.E.2d 311", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill.2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2778931 ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0559-01" ] }, { "cite": "254 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill.2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889170 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0196-01" ] }, { "cite": "211 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill.2d 481", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2885319 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0481-01" ] }, { "cite": "134 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "8 Ill.2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716574 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/8/0322-01" ] }, { "cite": "69 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "394 Ill. 569", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472365 ], "opinion_index": 0, "case_paths": [ "/ill/394/0569-01" ] } ], "analysis": { "cardinality": 728, "char_count": 12864, "ocr_confidence": 0.756, "pagerank": { "raw": 9.018826009613403e-08, "percentile": 0.5037220316705723 }, "sha256": "899c402a38f87c73691cf0fe0681d75f36a981c8991db2919d0bb040b9d32d62", "simhash": "1:b07b30953f7fae8c", "word_count": 2125 }, "last_updated": "2023-07-14T15:41:33.026395+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Claud Street, Admr. of the Estate of Larry Lee Byers, Deceased, et al., Plaintiffs-Appellees, v. Keith Finney et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE TRAPP\ndelivered the opinion of the court:\nJudgments for plaintiffs were entered upon jury verdicts in actions for wrongful death and funeral expenses. Defendants appeal.\nDecedent was a passenger riding in the left rear seat of the automobile driven by defendant, Finney. The latter was driving south upon an oiled country road in the nighttime. Defendant, Brown, was driving west upon a similar road and the cars collided at an uncontrolled intersection. The evidence conflicts as to the speeds of the respective vehicles and as to the extent of the obstruction of the view of the drivers by reason of growing soybeans. The evidence shows that Brown\u2019s car laid down 87 feet of skid marks prior to the impact. .Defendant, Finney, testified that he did not see the approaching Brown car until he was in the center of the intersection. Since the judgments must be reversed upon points of law, we do not detail the evidence further.\nThe court refused Finney\u2019s tendered instruction, I.P.I. Civil, No. 14.01, and gave instead plaintiff\u2019s tendered instruction:\n\u201cWhen I use the expression \u2018wilful and wanton conduct\u2019 I mean a course of action which shows an utter indifference to or conscious disregard for the safety of others, such as failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.\u201d (Emphasis supplied.)\nThe first portion of the instruction is I.P.I. Civil, No. 14.01, omitting the language of intentional conduct, but the emphasized portion adds language from the opinion in Schneiderman v. Interstate Tr. Lines, 394 Ill. 569, 69 N.E.2d 293.\nThe defendant, Finney, argues that the instruction is confusing and improper in that it undertakes to define wanton conduct in terms of ordinary negligence. Plaintiff argues that the added portion is a proper modification of the pattern instruction and that the language of the pattern instruction is an incorrect statement of the law which permits unfair argument by defense counsel. He also urges that the Supreme Court has refused to overrule the Schneiderman language, citing Myers v. Krajefska, 8 Ill.2d 322, 134 N.E.2d 277; Klatt v. Commonwealth Edison, 33 Ill.2d 481, 211 N.E.2d 720; Hocking v. Rehnquist, 44 Ill.2d 196, 254 N.E.2d 515; and Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311. None of the cases cited by defendant concerned the instruction of a jury as to the definition of wanton conduct.\nSupreme Court Rule 239, adopted effectively September 1, 1961, as Supreme Court Rule 25 \u2014 1, provides that:\n\u201c[T]he I.P.I. instruction shall be used, unless the court determines that it does not accurately-state the law.\u201d\nSchneiderman, Myers, and Hering antedate the rule.\nThere is scholarly basis supporting the view urged by Finney. In Prosser, Law of Torts (4th Ed. 1971), p. 185, it is said:\n\u201cThe usual meaning assigned to \u2018wilful,\u2019 \u2018wanton\u2019 or \u2018reckless,\u2019 according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to mak\u00e9 it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, amounting almost to willingness that they shall follow; and it has been said that this is indispensable. * * *.\nThe result is that \u2018wilful,\u2019 \u2018wanton or \u2018reckless\u2019 conduct tends to take on the aspect of highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent * *\nMore specifically discussing the problem at hand, it is said at page 186:\n\u201cA few particular jurisdictions have added no little to the confusion which surrounds \u2018wilful and wanton negligence\u2019 by defining it, under the automobile guest acts or in contributory negligence cases, as a mere failure to exercise ordinary care after discovery of ordinary danger \u2014 or in other words, ordinary negligence in the case of a known ordinary risk. Such negligence may consist of an unintentional failure to act promptly or even an honest mistake in judgment. This definition has rightly been condemned as unsound in principle, * *\nThe instruction, as framed, equates or makes synonymous the words \u201crecklessness or carelessness\u201d. While some dictionaries do not establish a clear cut difference between \u201creckless\u201d and \u201ccareless\u201d, it appears that in discussing the quality of wanton conduct, they should not be taken as synonymous. In Black\u2019s Law Dictionary, \u201cwanton negligence\u201d is defined as:\n\u201cThe negligent act of one who, without having the intent to injure, is conscious from his knowledge of the existing circumstances and conditions that his conduct will naturally and probably result in injury.\u201d\nIn similar context, Ill. Rev. Stat. 1969, ch. 38, par. 4 \u2014 6, equates \u201creckless\u201d and \u201cwanton\u201d and states that a person acts recklessly:\n\u201c[W]hen he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow * * *; and that such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.\u201d\nWithin the context of such definitions, the instruction placing \u201crecklessness or carelessness\u201d upon the same level of quality necessarily creates confusion or uncertainty.\nIn Myers v. Krajefska, 8 Ill.2d 322, 134 N.E.2d 277, the court discussed the guest statute and its foundation upon wilful and wanton conduct, saying:\n\u201cThe basic element in all of these cases indicates that liability can be founded under such a cause of action where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved * * *. It is generally considered in that area of fault between ordinary negligence and actual malice.\u201d (Emphasis supplied. )\nIt is apparent that the essential description of the conduct concerned in the opinion is in almost the precise language of the pattern instruction.\nThe potential for confusion and misunderstanding is particularly apparent, where, as here, the jury is called upon to consider a count in negligence as well as a count in wilful and wanton negligence with the necessary accompanying definitions of ordinary care and of the duty of the parties. The instruction tendered and given was a substantial deviation from the standards and purposes of the pattern instruction and cannot be approved.\nAn issue framed upon the pleading in the court\u2019s instruction was that of decedent\u2019s exercise of ordinary care for his own safety prior to and at the time of the collision. During the jury summation, Brown\u2019s counsel referred to decedent\u2019s position in the car, and the latter\u2019s opportunity to observe the approach of a car to the intersection. The trial court sustained plaintiff\u2019s objection that \u201cthe passenger has no duty to observe under those circumstances\u201d. Thereafter, plaintiff\u2019s counsel argued:\n\u201cDid Larry Byers contribute to cause this collision to occur? Did Keith Finney contribute to cause this collision to occur? Did James Brown contribute to cause the collision to occur? Only two of these people could, because Larry Byers was sitting in the car, not disturbing the driver and the passenger is not to look for vehicles or do anything else. He has to sit there and not disturb the driver. We don\u2019t approve of back seat driving in the State of Illinois.\u201d (Emphasis supplied.)\nBrown\u2019s counsel objected to such statement of the law. The court reserved ruling and did not thereafter rule upon the objection, or otherwise instruct the jmy upon such matter. The question is preserved in the post-trial motions.\nPlaintiff cites Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461; Hatcher v. New York Cent. R.R. Co., 17 Ill.2d 587, 162 N.E.2d 362, and Smith v. Polukey, 22 Ill.App.2d 238, 160 N.E.2d 508, as authorities supporting his position. These cases, however, do not hold that the passenger had no duty to look, and the opinions in Bishop and Polukey show that the passenger did look and did see the endangering vehicle. These opinions were, in fact, discussing the passenger\u2019s duty to warn. In Polukey, the court stated that whether the failure of the guest to warn is negligence depends upon the circumstances. In Bishop and Hatcher, it was stated that the passenger has no duty to warn unless he sees obvious danger which the driver might not see.\nIn Hatcher, it is said that the duty of a passenger in an automobile is to use such care and caution as a person situated in like circumstances would exercise. In Pedrick v. Peoria & E. R.R. Co., 63 Ill.App.2d 117, 211 N.E.2d 134 (Affirmed, 37 Ill.2d 494, 229 N.E.2d 504), it was said:\n\u201cA passenger riding in an automobile must exercise due care for his own safety, and if he has an opportunity of learning of approaching danger, and has the opportunity to avoid said danger, he must warn the driver of such danger. Such passenger, merely because someone else is driving the car, has no right to omit prudent efforts on his part to avoid danger.\u201d\nIn Siebens v. Konicek, 108 Ill.App.2d 300, 247 N.E.2d 453, it is said:\n\u201cIt is the duty of a passenger in a vehicle where he has the opportunity to learn of and avoid a danger, to warn the driver of a vehicle, of the approaching danger, and he has no right, because someone else is driving, to omit reasonable and prudent efforts on his own part to avoid danger. Zank v. Chicago, R. I. & P. R. R. Co., supra, 483, 161 N.E.2d 848; Gillan v. Chicago North Shore & M. Ry. Co., 1 Ill.App.2d 466, 117 N.E.2d 833 (1954).\u201d\nIn Pizano v. Trejo, 2 Ill.App.3d 944, 274 N.E.2d 861, the court reversed the finding of the trial court that the guest was not guilty of contributory negligence as a matter of law, saying \u201cat precisely what point the duty of a passenger arises to change from passive reliance upon the driver to active protest is largely a factual question to be decided by the jury upon the evidence of facts and circumstances\u201d.\nBy reason of plaintiffs argument purporting to state the law and the failure of the court to rule upon Browns objection, the jury considered the evidence in the light of an erroneous statement of law concerning decedent\u2019s duty to exercise ordinary care for his own safety.\nThe error is emphasized under the evidence to be considered by the jury that Finney did not see Brown until the former\u2019s vehicle was in the middle of the intersection, and by the evidence that decedent and those in the Finney car had been drinking beer for some span of time. For such reason, the judgment entered against Brown must be reversed.\nIssues not necessarily reviewed upon this appeal will possibly arise upon a new trial. The trial court refused to permit counsel to ask questions of the jurors during voir dire examination. In a memorandum the court stated that Supreme Court Rule 234 can:\n\u201c[Ejasily be interpreted as granting complete discretion to the trial court to conduct the voir dire.\u201d,\nand that he did not believe that counsel had an absolute right to ask questions during the voir dire.\nIn People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325, the court speaks of the rule as a reasonable limitation upon voir dire examination by the parties, and states that the rule recognizes and preserves the privilege of a reasonable opportunity to supplement the examination conducted by the court. The opinion expressly notes that the rule permitted both the court and counsel to question jurors concerning their competency and qualifications. On voir dire an attorney has the right to make such reasonable pertinent inquiries as will permit an intelligent exercise of a right to challenge. (Schneider v. Kirk, 83 Ill.App.2d 170, 226 N.E.2d 655; Watson v. Fischbach, 6 Ill.App.3d 166, 284 N.E.2d 720.) In Lobb it is stated that a failure to permit additional pertinent inquiries by the respective parties to enable such parties to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable them to exercise their right of peremptory challenge intelligently, may constitute reversible error.\nThe judgments below are reversed and the cause is remanded for a new trial.\nReversed and remanded.\nSMITH and SIMKINS, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE TRAPP" } ], "attorneys": [ "Giffin, Winning, Lindner, Newkirk & Cohen, and Potter & Costello, both of Springfield, (Alfred F. Newkirk and Michael J. Costello, of counsel,) for appellants.", "Thomson, Thomson & Mirza, of Bloomington, (Jerome Mirza, of counsel,) for appellees." ], "corrections": "", "head_matter": "Claud Street, Admr. of the Estate of Larry Lee Byers, Deceased, et al., Plaintiffs-Appellees, v. Keith Finney et al., Defendants-Appellants.\n(No. 11452;\nFourth District\nJanuary 31, 1973.\nGiffin, Winning, Lindner, Newkirk & Cohen, and Potter & Costello, both of Springfield, (Alfred F. Newkirk and Michael J. Costello, of counsel,) for appellants.\nThomson, Thomson & Mirza, of Bloomington, (Jerome Mirza, of counsel,) for appellees." }, "file_name": "0638-01", "first_page_order": 660, "last_page_order": 666 }