84 N.E.2d 435 | Ill. | 1949
Appellees, Ida Maria Mower and Val A. Mower, filed suit in the circuit court of McLean County to recover damages sustained when their car, being driven by the husband, collided with a State-owned truck equipped with a snow plow to the front, which was being operated by the appellant in clearing the snow from the highway.
The complaint, consisting of two counts, charges in one ordinary negligence and in the other wilful and wanton conduct. The defendant filed his answer and the cause was tried before a jury. At the close of all the evidence the *488 court sustained a motion for a directed verdict on the grounds of insufficiency of the evidence as a matter of law, and common-law governmental immunity including statutory immunity. From this ruling an appeal was taken to the Appellate Court which reversed and remanded the cause. The defendant, waiving his right to a new trial, moved to strike the remandment, which motion was sustained, and appealed to this court.
The principal and controlling questions are: (1) Was there any evidence of wilful and wanton conduct to require submission of that question to the jury; and, (2) Is defendant clothed with immunity from liability for his acts of negligence.
Defendant contends first that the trial court correctly refused to submit the wilful and wanton count of the complaint to the jury for the reason that there is no evidence to sustain that count. In order to ascertain whether the court was warranted, as a matter of law, in its failure to submit this question to the jury, an examination of the evidence must be made. An analysis discloses that just prior to the collision defendant was driving a State-owned truck, equipped with a snow plow, in a northerly direction on Route 150, near the city of Bloomington. There was considerable snow and slush on the pavement and as the plow proceeded it threw snow and dirt on the right side of the truck obscuring the vision out of the right cab window and its right windshield. At a point on Route 150, about one-eighth mile south of its intersection with Route 66, which runs east and west, defendant stopped the snow plow and he and his helper cleaned the windshield and right window. After doing this they proceeded north to the intersection plowing snow as they went. The truck was equipped with a red flasher light atop the cab which was turned on. Defendant stopped the truck at the intersection, looked to the front and left for traffic and asked his helper, one Dunlap, to look to the east. Dunlap opened the cab door and stated *489 it was safe to proceed. There were two cars on the curve to the east, which the evidence disclosed was about one-half mile east of the intersection, traveling at a speed of about thirty miles per hour. They were going west on Route 66 on the north lane of said route and were approaching the intersection of Route 150. Route 66 at this point consisted of two lanes of traffic, one westbound and one eastbound, being separated some distance by an intervening dirt tract. Both highways were covered with wet snow and slush and were very slippery. There were signs on Highway 66 to the east of the intersection located 2532, 5082 and 807 feet, respectively, which warned westbound traffic of the intersection. Defendant stopped at the intersection, waited one or two minutes for eastbound traffic to clear, and then drove the snow plow into the intersection, crossing the south lane of the highway, slowed a little as he passed the parkway and then proceeded in the north lane of Highway 66. Plaintiffs were about 200 feet east of the intersection when they saw the plow enter. They blinked their lights and sounded their horn, applying their brakes, at which time their car began to skid and sway on the highway. When the snow plow slowed in passing the parkway, plaintiffs released their brakes and reapplied them as the plow proceeded. As the blade of the snow plow reached the center of the north lane of Highway 66 it was struck by plaintiffs' car resulting in the damages as alleged in the complaint.
Defendant testified he did not look in the direction from which plaintiffs' car came, but that it was the duty of his helper, Dunlap, to watch for traffic on that side, and that he proceeded in the intersection in reliance on Dunlap's statement that it was safe.
As to whether or not there has been wilful and wanton conduct in any given case necessitates close scrutiny of the facts as disclosed by the evidence, and while the rule of law does not vary, the facts to which the law is applicable always present divergent circumstances and facts which, in *490
most instances, are wholly dissimilar. This court in Bartolucci
v. Falleti,
The plaintiffs contend the court should never direct a verdict if there is a scintilla of evidence to support the plaintiff's claim and cite, among others, the case of Knudson v. Knudson,
It is next contended by the defendant that he is immune from suit on the facts here by virtue of his employment by the State. There being no evidence of wilful and wanton conduct, the question is then presented as to whether the defendant is liable for his acts of ordinary negligence. That the State is immune can hardly be questioned. Section 26 of article IV of the constitution of 1870, states: "The state of Illinois shall never be made defendant in any court of law or equity." Neither is a State agency liable. Minear v. State Board of Agriculture,
Plaintiffs contend that defendant, Herbert Williams, cannot be classified other than as an employee acting in a ministerial capacity and cite the case of Tearney v. Smith,
In the instant case it is apparent the duty being performed by the defendant was a duty owed the general public, whereas in theTearney case, the duty to use reasonable care in constructing the drain so as to avoid flooding plaintiff's land in no way affected the public right to use the road, and the injuries sustained by plaintiff were personal to him and to no other by virtue of his ownership of the adjoining land.
Plaintiffs cite the case of People v. Bartels,
In the instant case the evidence reveals that defendant was employed by the State Highway Department, that he was assigned by his superiors to be "maintenance man" on a designated strip of some 21 miles of highway. He was assigned other men as helpers and provided with equipment, including the snow plow, with which to perform his various duties. He was, in general, left to his own judgment as to *493 when and where he should perform his duties in his assigned territory and as to the manner in which he would use the State-owned equipment furnished him. Under such circumstances his duties were not within the definition of "ministerial" as announced in the Bartels case. Defendant is conceded to be the agent of the State and there is no contention that the removing of the snow from the public highway at the place and time of the collision was not within the duties with which defendant was charged. The removal of snow and ice from one of the main traveled highways is absolutely essential to the welfare and safety of the traveling public. There are few, if any, functions of public responsibility which require more prompt and effective action on the part of those charged with such duty. That the removal of such snow and ice is a governmental as distinguished from a ministerial function appears as a reasonable proposition when circumscribed by conditions necessitating the overcoming of the hazard of snow and ice, with its attending danger to life and property, especially when it is of such magnitude that private means are not adequate to deal with the problem, and where the public welfare demands and the public relies on the State to meet the problem. The defendant, as an agent of the State, was charged with a duty that was in no way fixed as to time, mode or occasion and his duty was not ministerial in character.
The defendant, having been engaged in duties of a governmental character, requiring the exercise of discretion and judgment, he is not liable for defects in that judgment in carrying out his duties. (Taylor v. City of Berwyn,
After analyzing this record in all of its phases, we are of the opinion the Appellate Court erred in reversing the judgment of the trial court directing a verdict. The judgment of the Appellate Court, therefore, is reversed, and the judgment of the trial court affirmed.
Appellate Court reversed; circuit court affirmed.
Mr. JUSTICE CRAMPTON, dissenting.