¶1dissenting.
¶2In this dissenting opinion I will first quote from a Comment in 54 Northwestern University Law Review, page 263, which is a reappraisal of the Illinois Guest Statute in which it is pointed out that the Guest Statute substituted the test of “wilful and wanton” misconduct as the standard to be applied in determining duties and liabilities in the guest-host relationship. It discusses the way in which the Illinois courts have dealt with the statute and quotes from Myers v. Krajefska, 8 Ill2d 322, 329, 134 NE2d 277, where the court said:
“. . . [wilful and wanton misconduct] is generally considered in that area of fault between ordinary negligence and actual malice. In view of the fact that it is a matter of degree a hard and thin line definition should not be attempted.”
¶3The reappraisal further points out (at page 271):
“Because of the ever-increasing number of insured motorists today, the real defendant in an automobile negligence suit is the insurer. Thus, it is no longer the host who must be protected by statute to insure fairness. In fact, the uninsured motorist whom the statute originally protected is now in general disrepute and should not be the object of protection. In general, the only way in which the insured motorist can be pecuniarily damaged is through increased premiums due to multiple actions brought against him, indicating a poor insurance risk.”
¶4The Comment states that the Illinois courts have interpreted the statute to defeat what was apparently originally intended, by elevating to wanton, acts which are merely gross negligence, and that such interpretation would cause insurers to settle cases rather than face a jury verdict. However, no matter whether the decisions of the court might indicate judicial dissatisfaction with the purposes of the statute, it might be said that the courts are merely restating the definition which they first pronounced prior to the Guest Statute. It is stated: “It is to be presumed that the legislature was aware of the court’s interpretation of those terms when it used them in the act. Unless the legislature anticipated a new definition of the concept in line with the purposes of the act, the Guest Statute in Illinois is no less than what was intended.”
¶5The Comment also considers that question of why the insurer should receive the benefit which the statute is designed to confer. One reason advanced for the adoption of the statute was the ultimate saving to the person purchasing insurance, since every verdict obtained by an injured passenger increases the premium paid by the automobile owning public. It continues (at pages 273-274):
“However, the economic utility of the lowest possible insurance rates must be balanced against the social disutility of uncompensated victims. If present day theories of liability are economically incapable of providing the protection desired, alternatives must be found.”
¶6The Comment concludes by saying at page 274:
“In addition, the Guest Statutes in general have not succeeded in securing fairness to either host or guest, but rather have substantially benefitted insurers at the expense of both parties. The uncertainty and subjectivity of the standard of 'fairness' negatives whatever attributes it may have. Nor can this substantial benefit to the insurer be justified on the basis of fear of collusion. Thus, it is suggested that aside from any alternatives which may be available, the Guest Statute no longer can be rationalized with the same arguments used by proponents a generation ago. When this factor is combined with trends in tort law it becomes fairly clear that some step must be taken to assure greater protection to potential victims of the ever-growing number of motor-vehicle owners and operators.”
¶7A comparatively recent case dealing with and analyzing the statute is Bering v. Hilton, 12 Ill2d 559, 147 NE2d 311. Mary Bering appealed from a judgment of the Appellate Court (13 Ill App2d 132, 140 NE2d 737) which reversed a judgment of the circuit court entered on a jury verdict allowing the plaintiff $7,000 as damages for personal injuries sustained in a collision between the plaintiff’s automobile and the truck driven by defendant. Plaintiff’s suit for damages was originally predicated on a single count charging defendant with wilful and wanton conduct. Defendant’s motion for a directed verdict on the wilful and wanton count was denied, and the Appellate Court, considering only the propriety of the trial court’s denial of the directed verdict on the wilful and wanton count, reversed the cause and held that the defendant was not guilty of such conduct as a matter of law. The Supreme Court said at page 562:
“Wilful and wanton misconduct has been defined in myriads of cases, each one reiterating or embellishing the phraseology of its predecessors. [Citing cases.] One often quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569, at p 583: ‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a 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.’ In the recent case of Myers v. Krajefska, 8 Ill2d 322, this court refused to overrule that definition. The court noted that although there are some variations in the phraseology of the definitions of wilful and wanton misconduct in the cases, the basic concept as applied in the case law is the same, and since such conduct is usually a matter of degree, no hard-and-thin-line definition could be made.”
¶8The court further laid down the ordinary rule that in determining whether the wilful and wanton count should have been submitted to the jury, the defendant’s conduct must be measured by the standard which the court previously laid down, and that there can be no conflict in the evidence considered, nor its weight or preponderance, nor the credibility of witnesses, but the court must take that evidence as true which is most favorable to plaintiff’s cause of action. The court stated: “If such evidence and its intendments most favorable to plaintiff tend to establish wilful and wanton misconduct by defendant, then defendant’s motion for a directed verdict was properly denied.”
¶9The court then discussed the evidence which indicated that the defendant proceeded into a preferred highway, failing to heed the warning of plaintiff’s horn, and merely accelerated his speed so that the cars collided in about the center of the intersection. The court also called attention to the fact that the defendant argued that his action in driving ahead amounted only to an error of judgment rather than to wilful and wanton misconduct. The court said, at page 564:
“With this we cannot agree. Labelling the conduct ‘an error of judgment’ does not free it from the taint of wilful and wanton misconduct, but merely begs the question, for practically all such collisions could be attributed to errors of judgment, and the query in each case is whether such error of judgment was in disregard of dangers which should have been apparent to a reasonable man. ... ; it is sufficient if he had notice which would alert a reasonable man that substantial danger was involved, and that he failed to take reasonable precautions under the circumstances.”
¶10The judgment of the Appellate Court was reversed and the cause remanded to the Appellate Court with directions to consider the wilful and wanton issue in the light of the analysis set out in the case.
¶11In Hatfield v. Noble, 41 Ill App2d 112, 118, 190 NE2d 391, the rule is laid down:
“For an act to be wilful and wanton, the defendant need not have intended that any harm should ensue, nor actually know for sure that there would be any harm done. It is sufficient if he had notice which would alert a reasonable man that substantial danger was involved and failed to take reasonable precautions under the circumstances. Hering v. Hilton, 12 Ill2d 559, 147 NE2d 311.”
¶12In Rosbottom v. Hensley, 61 Ill App2d 198, 209 NE2d 655, the court discussed at considerable length the elements of wilful and wanton conduct which would give rise to the liability of the driver of an automobile to a guest-occupant. The defendant argued that there was no showing that the defendant had knowledge or consciousness that her conduct would be likely to result in injury, and that as a matter of law it should be held that she could not be guilty of wilful and wanton conduct. The court, at page 207, cited Gaiennie v. Fringer, 5 Ill App 2d 403, 126 NE2d 38, in which case the defendant had stopped at a highway stop sign, started forward, then drove 30 feet into the preferential highway without looking to the right or left. A guest-occupant warned defendant of the automobile approaching from the right, but defendant neither looked, stopped his car, or accelerated his vehicle to cross ahead of it. The court held it was a question for the jury and took the view that the defendant should be conscious from his knowledge of the surrounding circumstances that his conduct would naturally and probably result in injury.
¶13The court, at pages 207-208, also cited Johnson v. Chicago N. W. Ry. Co., 9 Ill App2d 340, 132 NE2d 678, in which case the defendant grandmother drove her car with her granddaughter as an occupant onto a railroad crossing while the signals were operating and the approaching train was clearly visible, and she stopped the car. The court said there could be no claim of error of judgment where a person fails to discover the danger, or discovers the danger and ignores it. In answer to the argument that actual knowledge by the defendant was an essential element in proving wilful and wanton misconduct, the court quoted from Stephens v. Weigel, 336 Ill App 36, 82 NE2d 697, as follows:
“ ‘It is not necessary, however, that defendant intend that plaintiff should be injured by reason of his acts, nor is it necessary that the defendant actually know the dangers to which plaintiff is exposed. It is sufficient if he has notice which would alert a reasonably prudent man, and he does not take reasonable precautions under the circumstances.’ ”
¶14The court affirmed the trial court in its refusal to direct a verdict or to grant a judgment notwithstanding the verdict, and discussed various cases from other jurisdictions, laying down the rule that if there is any evidence in the record showing such a gross want of care as indicates a wilful disregard of consequences it is a question of fact for the jury. Citing Walldren Express & Van Co. v. Krug, 291 Ill 472,126 NE 97, the court said, at page 211:
“While this opinion did not relate to the situation of a guest under the statute, that language has been employed in guest cases. Johnson v. Chicago & N. W. Ry. Co., 9 Ill App2d 340 at 355, 132 NE2d 678.”
¶15The court further stated (at page 212) what is regarded as the generally accepted rule that
“Whether an act is wilful or wanton is greatly dependent upon the particular circumstances in the case and normally it is the peculiar province of the jury to weigh and try the evidence. Todd v. Borowski, 25 Ill App2d 367, at 375, 166 NE2d 296.
“As stated in Lessen v. Allison, 25 Ill App2d 395, 166 NE2d 806, the opinions of the Supreme and Appellate Courts in this State indicated that it is an exceptional case where the question of wilful and wanton misconduct ... is not a question for the jury.”
¶16The court held that there was sufficient evidence for the case to go to the jury.
¶17In the case before us the defendant in her testimony estimated that, from the feel of the car, the speed at which she was driving was about 25 to 35 miles an hour, but that she did not look at the speedometer. There was testimony in the record (which, in the opinion of the writer of this dissent, was not properly stricken) that the station attendant, Crawford, had noticed the car went very fast when it was leaving the station. The fact of speed is corroborated by the defendant’s statement that she accelerated her speed from the time she pulled out of the station, that she had her foot on the gas at all times and was gaining speed as she proceeded east on 127th Street, and that at no time before the impact with the guardrail did she put on the brakes. She further testified that she had not put on her bright lights; that with the low lights she could see ahead 50 to 75 feet; that she traveled approximately 300 feet east of the edge of the station before the accident occurred, and that she was able to see the pavement of 127th Street and the south edge of it, but that she did not observe that the roadway narrowed, nor that there was a culvert within two feet of the edge of the road. She stated that she was driving with the left wheels of her car in the center of the road, or slightly over the center; that the decedent asked her to move to the right, and she moved the car across a space of pavement wide enough to accommodate two cars and approximately two feet beyond the pavement, to contact the guardrail. There was testimony in the record that the right front end of the car and the west end of the guardrail were extensively damaged.
¶18These facts, together with the testimony as to the width of the road, are sufficient evidence favorable to plaintiff’s cause of action when considered with the inferences which might properly be drawn therefrom to support the allegations of the complaint.
¶19In Martin v. Cline, 15 Ill App2d 269, 273, 145 NE2d 505, the court said:
“It is, of course, difficult to lay down a general rule by which we may determine what type of conduct the law considers to be wilful and wanton misconduct. However, it may be stated generally that wilful and wanton misconduct is a more serious transgression than is negligence, and that an important distinction is in the mental attitude. Often negligence may consist of a mere inadvertence, or a momentary lapse from that degree of attentiveness required by due care. On the other hand, it is frequently said that a wanton act involves a conscious indifference to a known danger. It is based on the concept that, under the known or plainly observable circumstances, the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation, and ignored it.
“Ill will is not a necessary element, that is, there need not be an intention to cause harm. But if one knows, or should know by reason of surrounding circumstances, that the safety of another is in peril as a result of what he does or does not do, and he intentionally ignores this fact and does not regulate his conduct in accordance with such knowledge then such a conscious indifference to consequences does not constitute wilfulness. [Citing cases.] ”
¶20In Larson v. Harris, 77 Ill App2d 430, 435, 222 NE 2d 566, the court, in affirming the trial court which submitted the question of whether or not the defendant was guilty of wilful and wanton misconduct, cited and quoted from Lessen v. Allison, 25 Ill App2d 395, 401, 402, 166 NE2d 806, as follows:
“ ‘The more recent cases of the Supreme Court of this state indicate that it is the exceptional case wherein it can be said that the question of wilful and wanton misconduct on the part of the driver or contributory wilful and wanton misconduct on the part of the guest is not a question of fact for the jury.’ ”
¶21The case of Pedrick v. Peoria & Eastern Ry. Co., 37 Ill2d 494, 229 NE2d 504, is not applicable.
¶22In the instant case, the failure of the defendant to discover the danger when it could have been discovered by the exercise of ordinary care, was a question which should have been left to the jury to determine whether or not this conduct constituted a wilful and wanton act. Koch v. Lemmerman, 12 Ill App2d 237,139 NE2d 806.
¶23It is not the function of a reviewing court to interpret the statute to defeat the intention of the legislature. The judgment of the Circuit Court of Cook County should be reversed and the case remanded for a new trial.
¶24 The majority opinion, reciting testimony of the defendant, says: “Defendant was not confused after learning the way at the gas station, although she had been confused prior to that time.” Grosskurth, the Illinois State Trooper, testified that when he arrived at the scene of the accident, within 10 minutes, the defendant told him she was confused and didn’t know what happened.