This is аn appeal from a judgment of the Circuit Court of St. Clair County, based on a verdict as against defendant, Carmella Thоmas, in the sum of $12,000 in favor of plaintiff, Martha Augustine. Martha Augustine is the mother of Carmella Thomas, and was riding with her as a guest, and filed the action as against her daughter for personal injuries sustained as the result of wilful and wanton misconduct of her dаughter under the guest statute. Action was also taken as against a codefendant who was driving another car. The jury returned a verdict of not guilty as to the codefendant.
On appeal in this Court defendant contends that the Court belоw should have directed a verdict in favor of defendant, or judgment notwithstanding the verdict, or granted her a new trial, by reаson of certain errors committed in the trial of the cause.
As pointed out on appeal in this case by рlaintiff, defendant made a left turn into the oncoming automobile driven by the codefendant, who was found not guilty by the jury.
The fаcts were such as to raise a question of fact for the jury as to whether defendant was guilty of wilful and wanton misconduсt either in seeing the oncoming automobile and wilfully, wantonly, or recklessly attempting to race across the highwаy ahead of such automobile, or being guilty of wilful and wanton misconduct in failing to look and discover the oncoming аutomobile on the state highway. The jury found, as a fact, that defendant as a host driver was guilty of wilful and wanton misconduct. Since the jury had come to such conclusion, and (on the basis of the record before us which made the determinаtion of whether or not defendant was guilty of wilful and wanton misconduct a question of fact for the jury) this Court cannot substitute its judgment for such conclusion on appeal in this Court (McCormack v. Haan, 20 Ill2d 75, 78,
It is contended on appeal in this Court, likеwise that statements or questions put to prospective jurors on the voir dire examination concerned matters outside of the issues involved, and was so prejudicial as to be ground for mistrial. The specific statement was thаt although plaintiff was the mother of defendant and was suing her, they were on friendly terms, and there were no hard feelings bеtween them because of the lawsuit. The record shows none of the questions which were propounded in the examination of the jury. On the record there is no showing of any abuse of discretion by the Court in denying the motion for mistrial (Bartels v. McGarvey, 331 Ill App 275, 278,
Another point raised on appeal by defendant is the contention that plaintiff in her testimony has testified to facts which are binding upon her as a judicial admission in so far as defendant is concerned. Specifically, she testified that when they came to the road to make the turn, defendant stоpped, and both plaintiff and defendant looked and didn’t see a car. The evidence showed that defendant did, in fact, make a left turn onto the state highway and was struck by the oncoming automobile. Even if defendant brought her car to a complete stop, or if both plaintiff and defendant looked in front of them for oncoming traffic, and if plaintiff thought that defendant had looked, there could still he a question of fact from the circumstances in the reсord upon which the jury could predicate a finding of wilful and wanton misconduct, since she apparently racеd across the highway in a manner which resulted in the collision referred to. Under the record it could not he conсluded without question that the testimony of plaintiff was the sort of concrete, unequivocal statement which is required for a conclusive judicial admission (McCormack v. Haan, supra). The Court in the latter case points out that a рarty may by his own testimony conclusively bar his claim or defense, hut that a determination that he has done so depеnds upon an evaluation of all his testimony, and not just part of it; that it likewise depends upon an appraisal оf his testimony in the light of the testimony of other witnesses, and a consideration of their respective opportunitiеs to observe the facts about which they testify. There were sufficient undeterminated factors in the record to make it apparent that the testimony of the plaintiff in the instant case did not amount to a judicial admission which would dеfeat her claim.
A contention is also made that the verdict is against the manifest weight of the evidence so that a new trial should have been granted. The evidence which was presented in the cause was sufficient to justify the vеrdict of the jury, even though we might have come to a contrary conclusion on the basis of such evidence. Thе action was tried as a single lawsuit as against both defendants. The testimony of the co-defendant, if believed by the jury, could he used as a basis to amply sustain the verdict of the jury. Under such circumstances we cannot substitute our judgment for thаt of the jury. The number of witnesses testifying to a particular set of facts is not significant and where a fair question of fact is raised by the proof it will be sufficient to sustain the jury’s finding, and we would not be justified in setting such verdict aside as being against the manifеst weight of the evidence under such circumstances and the record in this cause (Moudy v. New York C. & St. L. R. Co., 317 Ill App 154, 160,
The judgment of the Circuit Court of St. Clair County will, therefore, he affirmed.
Affirmed.
SCHEINEMAN, P. J. and HOFFMAN, J., concur.