author: Mr. Justice Dady

text:
    People of State of Illinois, Defendant in Error, v. Purne Cooley, Plaintiff in Error.
    Gen. No. 9,467.

      Heard in this court at the May term, 1945.
    Opinion filed May 28, 1945.
    Rehearing denied July 5, 1945.
    Released for publication July 5, 1945.
    Alton B. Cofer, of Charleston, for plaintiff in error.
    W. K. Kidwell, State’s Attorney of Coles County, for defendant in error; Kenneth A. Green, of Mattoon, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

Defendant, Purne Cooley, was indicted on the charge of keeping a common gaming house in Charleston, Illinois. He was arrested and entered a plea of not guilty. A jury found him guilty and he was fined $100 and costs. He has sued out a writ of error to review the judgment.

Defendant urges only two grounds for reversal— first, that the evidence was insufficient to prove the commission of the offense charged, and, second, that the evidence was insufficient to prove that defendant was the one who committed the alleged offense.

Defendant was not in the courtroom during the trial but appeared only by his attorney.

The only evidence was that of four witnesses for the State, viz, Woodworth and Finley who were paid investigators and did not live in Charleston, Varda who owned the premises, and Dowling who was a deputy sheriff.

Woodworth testified that he was in the premises on only two different days; that on June 23, 1944, about 3:00 p. m. he saw there a crap table and two round tables such as are used in playing poker, saw three men playing craps with chips which they bought from a dealer in charge of the game, and that he, Woodworth, engaged in the crap game and quit four dollars winner. On the same day about 8:00 p. m. he again entered the premises and bought four chips for one dollar, lost three chips in the game, and kept one chip which was introduced in evidence. On the afternoon of June 30, with Finley, he again entered the premises and saw the same tables and other gambling paraphernalia, but no game was being played. At that time he saw only two other men in the place, one of whom then told Woodworth that he was the proprietor and that his name was “Cooley,” but that such man did not tell Woodworth his first name; that this was the only time that he ever saw “Cooley,” and “Cooley” was not the man he saw dealing the game on June 23.

Finley testified that he was in the premises on only one occasion and that was on June 30, 1944; that he went there with Woodworth; he saw two round tables and a crap table; on the crap table there were dice and chips, but no one was playing craps or poker. He saw only two men, one of whom said his name was “Cooley,” but such man did not say his name was Purne Cooley.

Varda testified that he rented the premises to his son who was away in the army; that he, Varda, operated a saloon and had known a Purne Cooley a few months, and Purne Cooley was aged about 45 years.

Dowling testified that on July 27, 1944, he served a warrant in the present case on Purne Cooley; that he had never known Purne Cooley before; that at the time of serving such warrant he first saw Purne Cooley in the sheriff’s office and the sheriff then pointed to a "man in the office and said that such man was Purne Cooley.

Woodworth and Finley each described “Cooley” as being aged between 45 and 50 years, and as being about 5 feet 7 inches in height. Woodworth said “Cooley” weighed about 160 pounds, and Finley said ‘ ‘ Cooley” weighed about 165 pounds. Varda said Purne Cooley was aged about 45 years. Dowling said Purne Cooley was aged about 40 years, was about 5 feet 8 or 9 inches in height and weighed about 165 pounds. Woodworth said “Cooley” had gray hair,. nearly white. Finley said “Cooley” had grayish hair. Dowling said that Purne Cooley had hair beginning to turn gray. Woodworth and Finley said that “Cooley” had blue eyes which protruded. Dowling said he thought that Purne Cooley had brown eyes.

The foregoing was, in substance, all of the material evidence tending to show the guilt of the defendant.

It is our opinion that such evidence was sufficient to justify the jury in finding that the offense charged in the indictment was committed by some man.

In the present case the defendant had been admitted to bail and was at liberty to attend the trial or not, as he saw fit. (People v. Harris, 302 Ill. 590, 593.) His failure to testify as a witness did not create any presumption against him. (Par. 734, ch. 38, Ill. Rev. Stats. 1943 [Jones Ill. Stats. Ann. 37.720].) Notwithstanding his failure, to appear in person at the trial, the burden rested on the prosecution not only to prove the commission of the crime charged beyond a reasonable doubt, but also to prove by the same measure of evidence that the alleged crime was committed by the defendant. (People v. Peck, 358 Ill. 642; People v. Corbishly, 327 Ill. 312.)

We do not consider as being applicable to the facts in the present case such cases as People v. Decina, 306 Ill. 260, wherein it is said that it is sufficient to sustain an averment of a particular name that a person is usually or popularly known by such name, or such cases as People„ v. Schanda, 352 Ill. 36, wherein it is indicated that identical names are presumed to refer to the same person, or such cases as People v. Auriene, 361 Ill. 440, which discuss the effect of discrepancies in testimony as to identity.

It will be noted that Woodworth and Finley each saw a man named “Cooley” on only one occasion, that is on June 30,1944. “Cooley” was a stranger to them, and neither of them was told that the name of such man was Purne Cooley. Varda was not asked and did not testify as to whether he ever saw Purne Cooley in or enter the premises in question, and was not asked as to whether he ever had any dealings or conversation with Purne Cooley concerning said premises. Dowling merely testified that he arrested the defendant, Purne Cooley. The only peculiar or abnormal or otherwise distinguishing description of “Cooley” as given by Woodworth and Finley was that they said that “Cooley” had eyes which protruded, but neither Varda nor Dowling was asked whether. Purne Cooley had eyes which protruded. It will also be noted that Woodworth and Finley said that “Cooley” had blue eyes, while Dowling said that he thought that Purne Cooley had brown eyes. Varda was not asked about the color of Purne Cooley’s eyes.

It is our opinion that the foregoing evidence was not sufficient to justify the jury in finding that the “Cooley” who admitted to Woodworth and Finley that he was the proprietor of the alleged gaming house was the same person as the defendant, and are therefore of the opinion that the guilt of the defendant was not proven beyond all reasonable doubt.

For the reasons indicated the cause is reversed and remanded for a new trial.

Reversed and remanded tvith directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Sullivan

license: Public Domain

text:
    Bessie Louise Richmond, Appellee, v. Henry Richmond, Appellant.
    Gen. No. 43,171.
    Heard in the second division of this court for the first district at the October term, 1944.
    Opinion filed May 29, 1945.
    Released for publication June 14, 1945.
    Wm. E. Rodriguez, of Chicago, for appellant; Richard P. Garrett, of Chicago, of counsel.
    Daniel A. Covelli, of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

On July 24, 1936 a marriage ceremony was performed between Henry Richmond and Bessie Louise Richmond, both of whom believed at that time that Henry Richmond’s former wife, Elsie Richmond, had procured a decree of divorce from him on February 20, 1936 but later discovered that Elsie Richmond’s decree of divorce was not approved and signed by the chancellor and entered of record by the clerk until January 28, 1938.

On November 4, 1943 Bessie Louise Richmond filed an original complaint in equity against the defendant, Henry Richmond, wherein she prayed that Elsie Richmond’s decree of divorce from defendant theretofore entered on January 28, 1938 be amended and corrected “so that said divorce decree in said' cause will stand entered of record nunc pro tunc as of February 20, 1936.” The cause was referred to a special commissioner whose findings and recommendations were approved by the decree of the trial court, which ordered that “the Decree heretofore entered in the cause entitled ‘Elsie Richmond v. Henry Richmond,’ dated February 20th, 1936 and entered January 28th, 1938, be and the same is hereby corrected and entered nunc pro tunc as of February 20th, 1936, and that an amended Decree be filed in said cause and signed by this court nunc pro tunc as of February 20th, 1936.” Defendant appeals from the decree.

The parties stipulated as to the material facts. Henry Richmond married Elsie Richmond on December 4, 1933. Elsie Richmond filed a complaint for divorce against Henry Richmond, whose appearance and answer were filed by his attorney. The parties entered into a stipulation in the divorce proceeding that it might be heard on complaint and answer as in case of default. Hearing was had before Judge Rudolph Desort, February 20, 1936 and at the close of the testimony presented on behalf of Elsie Richmond the court said “prepare your decree.” However, the decree in that case was not presented to Judge Desort for. his approval and signature until January 28, 1938, on which day it was signed by him and entered of record by the cleric. The attorney who prepared the decree of divorce dated it February 20, 1936. On July 24, 1936 a marriage ceremony was performed between Bessie Louise Richmond, the plaintiff herein, and Henry Richmond, both of whom believed in good faith at that time that Elsie Richmond was granted a decree of divorce from defendant on February 20, 1936. Bessie Louise Richmond and Henry Richmond lived together as husband and wife until May or October 1942. In May 1942 Henry Richmond was inducted in the United States Army and he made an allotment of $50 per month to Bessie Louise Richmond as his wife. In June or July 1943 Henry Richmond, having discovered that the decree granting Elsie Richmond a divorce from him had not been entered until January 28, 1938, notified Bessie Louise Richmond of his discovery and informed her that he was not legally married to her. In July 1943 Henry Richmond married Pauline Grace Willis in Daytona, Florida.

As heretofore shown, the particular relief sought by plaintiff in this case was to have the record of the entry of the decree granting Elsie Richmond a divorce from Henry Richmond so altered that the date when the evidence was heard in that case and Judge Desort said “prepare your decree” be held to be the date when the decree of divorce became effective, notwithstanding that the written decree was not approved and signed by the judge and entered of record by the clerk until almost two years later.

Numerous grounds are urged by defendant for reversal but the only question we deem it necessary to determine is whether the trial court could under the law consider Elsie Richmond’s final decree of divorce from Henry Richmond as having become effective on February 20,1936, because of the mere oral pronouncement of the judge on that day, “prepare your decree,” instead of on January 28, 1938, when the decree of divorce was approved and signed by the judge and entered of record by the clerk.

Plaintiff’s position is that the decree in the instant case is “sound in law and well justified by this record” and that the case of Moore v. Shook, 276 Ill. 47, completely answers every contention made by defendant.

While the facts and legal principles involved in the Moore case are strikingly similar in most respects to the facts and questions of law presented here, there is one material difference that distinguishes that case, as will be hereinafter shown. In the Moore case it appeared that Dr. Isaac Moore filed a bill for divorce in the circuit court of Madison county against his wife, Elizabeth Moore, and after an order of default was entered against the defendant therein a hearing was had December 2, 1911; and that at the close of the hearing the judge announced orally that the divorce was granted and wrote the following in his docket: “Cause heard. Court finds deft, guilty of extreme and repeated cruelty. Decree for divorce to complainant. Costs to complainant.” It also appeared that a written decree was not approved by the presiding judge until December 15,1911 and was not filed by the clerk until December 16, 1911; that on December 9, 1912 (which was more than a year after the said oral announcement was made by the court in that case but less than a year from the approval of the written decree by the judge) Dr. Moore was married to Lila Moore and lived with her until his death, November 19, 1914; that after his death Lila Moore was granted letters of administration in the probate court of Madison county and proceeded with the administration of Dr. Moore’s estate until December 6, 1915, when Ella Y. Shook, a daughter of Dr. Moore by a former marriage, filed a petition in the probate court of Madison county wherein she alleged that Lila Moore was not the surviving widow of Dr. Moore and was not entitled to letters of administration; that pursuant to a hearing on said petition the probate court found that Lila Moore and Dr. Moore were married less than a year from the time he was divorced from his former wife and that by reason thereof said marriage was null and void and Lila Moore was not entitled to any rights as Moore’s widow. Lila Moore then filed a bill in the circuit court of Madison county in which she alleged the foregoing facts and in addition that her marriage to Dr. Moore was entered into in good faith and with no intention to defeat the laws of Illinois nor contravene the public policy of the State; and that both she and Dr. Moore believed that he had been granted a divorce from his former wife on December 2, 1911, when the hearing was had and the oral announcement made in open court, rather than on December 16, 1911, when the formal written decree was thereafter entered of record by the clerk. At the time the Moore case was decided remarriage within one year after a decree of divorce was entered was invalid in this State.

The Supreme Court did hold under the facts in that case that Dr. Moore’s decree of divorce from his former wife should be considered to have become effective on December 2,1911, when the trial judge heard the evidence and made the entry in his docket: “Cause heard. Court finds deft, guilty of extreme and repeated cruelty. Decree for divorce to complainant. Costs to complainant.” There the right of the court to modify the record in respect to the effective date of the decree was not predicated on the oral announcement of the judge that the divorce was granted or that the decree should be prepared but upon the foregoing written entries made by the trial judge in his docket. Here plaintiff relies solely upon the oral pronouncement of the court in Elsie Richmond’s divorce proceeding, “prepare your decree,” as sufficient authorization for another judge of the same court, more than six years later, to change the effective date of Elsie Richmond’s decree of divorce from January 28, 1938, when the written decree was signed and entered of record, to February 20,1936, when the evidence was heard and the trial court made the oral pronouncement, “prepare your decree.”

It has been repeatedly held that a decree in equity cannot become final until it is submitted to and approved by the chancellor and entered of record. In the very case upon which plaintiff relies, Moore v. Shook, 276 Ill. 47, it was held at pp. 51 and 52:

“Under the law in this State a decree in equity is not final until approved by the chancellor and filed for record. His mere oral announcement of the decision and the grounds upon which it is based is not controlling. The whole matter is completely Under his control, and is subject to be altered, changed, or even disregarded’, until the written decree is approved and filed for record.”

That the oral announcement by the trial court in that case that the divorce was granted was entirely disregarded by the Supreme Court in reaching its decision is clearly shown by the following statement on p. 52 of its opinion:

“The question then is whether from the minutes entered on the docket of the trial court in the original divorce proceedings the records in that case may be so modified and changed as to consider the final decree as having become effective December 2, 1911, instead of December 16, 1911.”

In Miller v. Miller, 376 Ill. 628, the court said at p. 632:

‘' The mere oral pronouncement of a decision is of no effect until the order is reduced to a written decree, approved and filed for record. Moore v. Shook, 276 Ill. 47; Horn v. Horn, 234 id. 268.”

In Anderson v. Anderson, 380 Ill. 435, in holding that the record showing the date of entry of a decree imports verity, the court said at p. 439:

“When the date of entry of the decree was once incorporated into the record, it was conclusive upon all parties until altered or set aside by a court of competent jurisdiction and all questions relating to the time it was in fact entered must be settled by reference to the record alone. (Herrington v. McCollum, 73 Ill. 476.) If the date the decree was actually entered was not correctly shown by the record, and if the correction of such became a matter of material inquiry, application should have been made to the court entering the decree to make the record speak the truth. (Roche v. Beldam, 119 Ill. 320; Herrington v. McCollum, supra.) Until such an amendment was made of record, the date shown in the record will be held to be conclusive.”

Elsie Richmond’s decree of divorce was actually and correctly entered on January 28, 1938, as shown by the record in that case. But even though the date of its entry was not correctly shown by the record, the correct procedure, as stated in the Anderson case, would have been to make application “to the court entering the decree to make the record speak the truth.” Since the date of entry of Elsie Richmond’s decree of divorce, as incorporated in the record in the divorce proceeding, is admittedly correct, it would not be vulnerable to attack even in a proper proceeding and certainly not on the ground asserted by plaintiff.

The attorney who drafted Elsie Richmond’s decree of divorce dated it “.February 20 Term A. D. 1936.” The fact that it was so dated is absolutely without significance, since it is undisputed that such decree was signed on January 28,1938 and it so shows on its face. The only reasonable inference that can be drawn from the fact that the decree was dated as indicated is that it was prepared on said date but for some reason not disclosed by the record it was not presented for the approval and signature of the trial judge until January 28, 1938.

All other points urged have been considered but in the view we take of this case we deem it unnecessary to discuss them.

For the reasons stated herein the decree, of the superior court of Cook county is reversed.

Decree reversed.

Friend and Scanlan, JJ., concur.


author: Mr. Justice Scanlan

text:
    Maude D. Duncan, Appellee, v. Chelsea Hotel Company, Appellant.
    Gen. No. 43,180.
    Heard in the second division of this court for the first district at the October term, 1944.
    Opinion filed May 29, 1945.
    Released for publication June 14, 1945.
    Ross, Berchem & Schwantes, of Chicago, for appellant.

      David Alswang and Lee W. Carrier, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an action brought by Maude D. Duncan against the Chelsea Hotel Company, a corporation, to recover damages claimed to have been suffered by her as she was lowering an In-A-Door bed in her room in the hotel. A jury returned a verdict in favor of plaintiff for $1,000, upon which judgment was entered.- Defendant appeals.

Defendant’s motions for a directed verdict and also its motion for judgment notwithstanding the verdict were overruled. Defendant states in its brief that it does not seek a new trial; that its position is, that taking all of the evidence most favorable to plaintiff, together with all the reasonable inferences to be drawn therefrom, there is a complete failure of proof to sustain the jury’s verdict and the judgment entered thereon, and that a judgment should be entered here in favor of defendant.

Plaintiff contended in the trial court and contends here that the relationship of defendant and plaintiff was that of innkeeper and guest and imposed upon defendant a high degree of care. Defendant contended in the trial court and contends here that plaintiff was a tenant and not a transient hotel guest, and that the law that governs an innkeeper and guest case has no application to the instant proceeding. In our view, we may assume, solely for the purposes of this appeal, that the relationship of defendant and plaintiff was that of an innkeeper and guest, it being understood, however, that she was a permanent guest and not a transient guest.

Plaintiff testified that she was sixty-nine years old, and a widow; that she had lived at the Chelsea Hotel for going on seven years; that she first occupied room 240, which had a Murphy In-A-Door bed; that for the last three years she has lived in room 340, where the accident in question occurred; that her occupation is that of a beautician and she did all her work in her room; that there was a Murphy In-A-Door bed in room 340 during the entire time she occupied it; that when she was not using the bed she would lift it up and put it away in a closet; that the accident happened on May 24, 1941; that about six months before that date she called up the office of the hotel “because the bed just came down too quick”; that she told the clerk in the office that she could not use the bed because it was out of order; “it came down too quick”; that they sent a house man named Gene to her room and he fixed the spring of the bed; that he took one of the springs out and put in another one, an old rusty one; that he carried the springs in a basket and she saw that it was a rusty one that he put back in the bed; that the bed never did work right, that “it just came down too quick”; that she made complaints to the hotel about two or three times and they would send the house man and he would do the same thing, take the old spring out and put in another old spring in its place; that he never did anything more to the bed than that; that the last time he did anything to the bed was about a month before the accident; that at that time she complained that the bed was coming down too fast and the house man came to her room and put in another old spring; that she “asked him why he didn’t put in a new one, he said he. couldn’t put in a new one because they wouldn’t give him a new spring, he would have to use the old ones”; that after the house man fixed the bed the last time the bed still came down fast; that she made other complaints to the clerk that the bed was coming down too quickly; that on May 24, 1941, about 11 o’clock p. m., after she pulled the bed down three or four inches it just came down on top of her and pinned her under the bed until 5 o’clock in the morning; that she was unconscious; that it fell down on top of her; that she had pulled the bed down about three or four inches before it came right down on her"; that she was right flat underneath the bed and could not get out; that she did not remember a thing after the bed struck her until morning, when she came to, and she was still under the bed. The witness then-described the injuries she sustained and the treatments given her by several doctors. She further testified that the first person she saw after the accident was Mrs. Lurie, who came in about noon; that Mr. Herbst, the manager of the hotel, came in not long after Mrs. Lurie and he had the bed taken out and sent her a doctor. Upon cross-examination the witness stated that she had no place of business other than her room in the hotel; that she had been using a Murphy bed for several years before the accident; that she did not want a stationary bed in the room because she gave facials in the room during the daytime; that during the month before the accident she used the bed every day and every day she noticed that there was something wrong with it “because it kept coming down on its own accord and I was afraid it would hurt me, the bed kept falling: down. It never fell down by itself. It only would come down when I started it down. The bed would fall on me ’ ’; that she continued to use it during the month before the accident; that she never requested to have a stationary bed put in the room, and that the Murphy bed when closed was in a closet; that she would open the closet door, pull the bed out and pull the feet out too; that she “would grab it from that hook across the thing there and pull it right down toward me. I stood in front of the bottom of the bed and pulled the bed toward me. As I pulled it toward me I would back away. You couldn’t stand on the side of the bed and push it down, not with those beds. As to whether I ever took hold of the bar on the side of the bed, you couldn’t do that with these beds. When I stood in-front of the bed I could reach the bottom bar while standing on the floor. I never stood up on the iron ledge and pulled the bed to give it a start. When I would start the bed down I would continue to hold it. Then I would walk away backwards as I let it come down. On this particular day I started the bed down and continued to hold it. I pulled the bed just as I had been doing for several years before. It didn’t fall, it came down in a hurry and pinned me under the bed. When the bed started down I had a hold of it. I fell right on my back, it threw me sidewards, that’s all I can tell you. I don’t know another thing. I didn’t trip over anything when I started over backwards, never in my room.” The witness then testified that after the accident Mr. Herbst suggested removing the Murphy bed and giving her a studio couch, and he put a couch in there for her right away, and she still has it in the room. Mrs. Laura Lurie, called by plaintiff, testified that she lived at the Chelsea Hotel; that she formerly had an In-A-Door bed in her apartment; that some of the apartments have stationary beds and others have In-A-Door beds; that she thinks “the stationary and in-a-door beds were about fifty-fifty”; that she saw plaintiff the morning after the accident, between 10 and 10:30, and she noticed that she had been injured. The witness then described what she saw as to plaintiff’s injuries. She further testified that after talking with plaintiff she examined the In-A-Door bed in plaintiff’s apartment; that the springs that held the bed as you let the bed down were too loose and two of them were hanging loose at the bottom; that they were not connected at all, but hung loose, four on the right side and three on the left side; that she thinks there should be at least ten springs inserted on both sides; that all the springs appeared very old and rusty; that when Mr. Herbst came to the apartment and heard what had happened he stated that he would take the In-A-Door bed out and put in a stationary bed; that he then had the In-A-Door taken out and put in a stationary bed. Upon cross-examination the witness testified that she had lived in the Chelsea Hotel for over seven years, that for four and a half years she occupied room 720 and that there was a Murphy In-A-Door bed in that room; that about two and a half years before the accident she moved into room 722, which has a stationary bed. The witness testified that she was familiar with the method of using a Murphy In-A-Door bed and that on the morning after the accident she looked at the springs on the bed in plaintiff’s room; that there were three springs on one side and four on the other and they weré rusty; that they were full of rust and two of them were loose at the bottom; that they were not fastened at all, they dangled.

The undisputed evidence is that the height of the Murphy bed in plaintiff’s room was six feet, seven inches; that its width was about three feet; that including the mattress and covering it weighed between 140 and 150 pounds.

In view of the position taken by defendant it is unnecessary to state its testimony that bears upon its instant contention.

Defendant also contends that “the plaintiff was required to show affirmatively that she was in the exercise of ordinary care for her own safety and her proof having failed in that respect, the trial court erred in not directing a verdict for the defendant.” Plaintiff contends that “defendant cannot, on this appeal, raise question of absence of evidence or lack of proof with respect to due care on the part of plaintiff, where instructions requested by defendant submitted the question of contributory negligence of the plaintiff to the jury.” In support of this contention she cites Trust Company of Chicago v. Ancateau, 317 Ill. App. 186, and Haynes v. Century Coal Co., 171 Ill. App. 83, and there is language in the opinion in each case that supports plaintiff’s position. Haynes v. Century Coal Co. cites no case in support of its holding, and Trust Company of Chicago v. Ancateau cites only the Haynes case in support of its ruling. There is no merit in plaintiff’s contention. (See Gunning System v. Lapointe, 212 Ill. 274; Chicago Terminal Transfer R. R. Co. v. Schiavone, 216 Ill. 275, 278; John Deere Plow Co. v. Carmer, 350 Ill. 104,107.) In Miller v. McHale, 263 Ill. App. 471, 479, we said:

' ‘ Equally without merit, in our opinion, is plaintiff’s counsel’s further contention that because, after said motions for a directed verdict had been denied, defendant by his attorney argued to the jury the question of the negligence of the driver of the car only, and thereafter requested the court to give certain offered instructions on the issue of his negligence only, defendant took an inconsistent position and waived Ms right to here assign error on the denial of said motions.” See, also, Cutler v. Gardiner Metal Co., 225 Ill. App. 497, 500, decided by the First Division of this court. Moreover, the new Civil Practice Act, ch. 110, par. 192, sec. 68 (3) a (Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.068, subpar. (3) a]), provides :

“ (3) a. Hereafter, in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case. ... ” (Italics ours.)

The law governing the instant contention of defendant is well established. In 32 C. J. 564, the author of the article “Innkeepers” states:

“ [Sec. 73] d. Contributory Negligence and Assumption of Risk. Where a defect in the building, premises, or appliances of an inn is an obvious one, or is known to the guest, he must use reasonable care and caution to avoid injury; and where he is guilty of contributory negligence, he cannot recover from the innkeeper. And it has been held that a guest assumed the risk of injury where, after having been in the hotel for such a length of time that he knew or had an opportunity to know of the alleged defects which he claims was the cause of his injury, he voluntarily elected to remain. ... ” (See, also; the many cases cited in support of the foregoing statement of the law.)

In Fonyo v. Chicago Title & Trust Co., 296 Ill. App. 227, the plaintiff lived in a furnished apartment hotel and was injured when she caught her heel in a hole in the carpet which was furnished and maintained by the defendant. There, the plaintiff knew of the hole in the carpet and had reported it to the defendant. She had tripped on the carpet shortly before the day that she received her injury. To quote from the opinion of the court (pp. 236, 237):

“ ... However, on the uncontradicted evidence we hold as a matter of law that plaintiff may not recover because.of lack of proof that at and prior to the time she received her injury plaintiff was in the exercise of due care for her own safety. The testimony bearing on that issue was furnished by plaintiff herself. It appears therefrom that plaintiff was perhaps more than any other aware of the condition of 'the carpet. No person knew the danger better than she. She says she actually tripped upon the carpet shortly before the day .on which she received her injury. It also appears that the man sent to repair the carpet told her that the hole could not be repaired. Plaintiff could easily have avoided all danger either by attention to her steps or by taking the simple precaution of covering the hole in the carpet. Plaintiff was not in the position of a transient guést at a hotel nor of a lodger in a lodging-house. She was a permanent tenant, familiar with the premises.
“It would serve no useful purpose to discuss the cases cited on the point of plaintiff’s contributory negligence. Under the facts as narrated by her, we think all reasonable persons must agree that plaintiff was negligent and that her negligence contributed to the unfortunate accident by which she was injured.”

The plaintiff had recovered a verdict and judgment in the trial court and the Appellate court reversed the judgment. The petition for leave to appeal from the judgment of the Appellate court was denied (296 Ill. App. xxii).

We have noted the case of Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312. There the plaintiff recovered a judgment in the trial court and the Appellate court reversed the judgment with a finding of facts as follows (p. 314): “The court finds as a fact that the plaintiff was not at the time of her injury in the exercise of ordinary care for her own safety.” The Supreme court held (p. 323): “The question as to whether she was or was not in the exercise of ordinary care and caution for her own safety must be solved by a jury.” However, the Pollard case differs very materially from the instant case, upon the facts.

We are constrained to hold that the instant contention of defendant is a meritorious one. For seven years plaintiff had used a Murphy In-A-Door bed. She had the right to have a stationary bed but because she transacted her business of facial uplifting and massage in her apartment she did not want that kind of bed, as it took up too much room and gave an uninviting aspect to the room. The defect in the bed was well known to plaintiff for a long time and she knew that the repair work done upon the bed by the house man did not remedy the defect. She controlled the operation of the bed, and she testified that “the bed never did work right. It just came down too quick”; that every day she noticed that there was something wrong with it “because it kept coming down on its own accord and I was afraid it would hurt me”; that every time she started the bed down she feared it might fall on her and she “was afraid' it would hurt me,” and with full knowledge of the danger to her person when she operated the bed she continued day after day to subject herself to the hazard which finally brought about her injury. Her age, sixty-nine years; her height, five feet, two inches; her weight, 130 pounds; the dimensions and weight of the bed, were additional factors that tended to increase the risk of injury she assumed when she operated the defective bed. Under the state of facts shown by plaintiffs evidence she assumed the risk of injury and was guilty of contributory negligence as a matter of law.

The judgment of the Superior court of Cook county is reversed.

Judgment reversed.

Sullivan, P. J., and Friend, J., concur.


author: Presiding Justice Bristow.

text:
    Lazetta Godfrey, Appellant, v. Albert W. Godfrey, Appellee.
    Term No. 44,024.
    Heard in this court at the February term, 1945;
    opinion filed March 5, 1945;
    rehearing denied June 21, 1945;
    released for publication June 27, 1945.
    Louis Beasley, for appellant;
    Martha L. Connole and James A. Farmer, for appellee.
   Opinion by

Presiding Justice Bristow.

Not to be published in full.


author: Justice Friend.

text:
    Nathan H. Glass, Individually and Trading as First Mortgage Investment Company, Appellant, v. Liberty National Bank of Chicago et al., Appellees.
    Gen. No. 43,114.
    Heard in the second division, first district, this court at the June term, 1944;
    opinion filed April 19, 1945;
    rehearing denied May 1, 1945;
    released for publication June 1, 1945.
    Jesse H. Brown, for appellant;
    Harold A. Fein, for appellees;
    George A. Gordon, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


author: Justice Kiley.

text:
    Vernon R. MacDonald, Appellee, v. Chicago Law Printing Company, Appellant.
    Gen. No. 42,707.
    Heard in the third division, first district, this court at the June term, 1943;
    opinion filed May 18, 1945;
    released for publication June 8, 1945.
    Poppehhusen, Johnston, Thompson & Raymond, for appellant;
    Henry J. Brandt, Albert B. Jenner, Jr., and Gilbert H. Hennessey, Jr., of counsel;
    Bryant, Roberts, Hwass & Colwell, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Thermal-Tite Insulation Company, Appellant, v. American Insulation Corporation, Appellee.
    Gen. No. 42,889.

      Heard in the third division, first district, this court at the December term, 1943;
    opinion filed May 18, 1945;
    released for publication June 8, 1945.
    Clement L. Harrell, for appellant; Loesch, Scofield, Loeseh & Burke, of counsel;
    Ernest W. Clark and James Maher, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Mary Latham, Appellee, v. Howard D. Salisbury, Appellant.
    Gen. No. 42,958.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed May 18, 1945;
    rehearing denied June 8, 1945;
    released for publication June 8, 1945.
    Harold G. Blake, for appellant; Raymond W. Beach, for appellee.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    In re Estate of Anderson Palmer, Deceased. Mills, Appellant, v. John T. Dempsey, Administrator of Estate of Anderson Palmer, Deceased, Appellee.
    Gen. No. 42,998.
    Heard in the third division, first district, this court at the February term, 1944;
    opinion filed May 18, 1945;
    rehearing denied June 8, 1945; released for publication June 8, 1945.
    David J. Maddox, for appellant;
    Levinson, Becker, Peebles & Swiren, for appellee;
    Don M. Peebles, William J. Lunn and Joseph H. Albaum, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


text:
    Sam Levy, Appellant, v. Charles D. Bernard, Trading as Bernard Box Company, Appellee.
    Gen. No. 43,109.

      Heard in the third division, first district, this court at the June term, 1944;
    opinion filed May 18, 1945;
    released for publication June 8, 1945.
    Henry H. Koven, for appellant;
    Louis E. Levinson, of counsel;
    Rittenhouse, Marovitz & Wallenstein, for appellee;
    Harold Marovitz, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Justice Lupe.

text:
    John F. Sniegowski, Administrator of Estate of Raymond J. Sniegowski, Deceased, Appellant, v. Edward L. Reece and George W. Klein, Appellees.
    Gen. No. 42,536.
    Heard in the third division, first district, this court at the December term, 1942;
    opinion filed May 18, 1945;
    rehearing denied June 8, 1945;
    released for publication June 8, 1945.
    Guy C. Guerine and McKinley & Price, for appellant;
    Guy C. Guerine and Paul E. Price, of counsel;
    Gardner, Carton & Douglas, for appellees;
    Erwin W. Roemer and James A. Velde, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    Bankers Building, Inc., Appellee, v. Howard F. Bishop, Appellant.
    Gen. No. 42,586.
    Heard in the third division, first district, this court at the February term, 1943;
    opinion filed May 18, 1945;
    rehearing denied June 8, 1945;
    released for publication June 8, 1945.
    O. D. Buckles and Jerome J. Sladkey, for appellant;
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee;
    Isaac E. Ferguson and Morton Lane, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


text:
    Emil Denemark and Jennie Denemark, Appellants, v. Arlington Park Jockey-Club, Inc., Appellee.
    Gen. No. 42,732.

      Kiley, J., dissenting.
    Heard in the third division, first district, this court at the June term, 1943;
    opinion filed May 18, 1945;
    rehearing denied June 8, 1945;
    released for publication June 8, 1945.
    Charles J. Michal and Charles C. & Richard M. Spencer, for appellants;
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee;
    Herbert M. Lautmann, Ben I. Greenebaum, Jr., and Isaac E. Ferguson, of counsel.
   Opinion by

Justice Lupe.

Hot to be published in full.


text:
    Leander J. Ibold, Appellee, v. 3920 Lake Shore Drive Building Corporation, Appellant.
    Gen. No. 42,886.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed May 18, 1945;
    rehearing denied June 8, 1945;
    released for publication June 8, 1945.
    Poppenhusen, Johnston, Thompson & Raymond for appellant;
    Henry J. Brandt, Abraham L. Rittenberg, and Adolf Loeb, of counsel;
    Adams, Moses & Culver, for appellee;
    Charles G. Culver, of counsel.
   Opinion by

Justice Lupe.

Not to be published in full.


author: Presiding Justice Sullivan.

text:
    Margaret McKenzie, Administratrix of Estate of John McKenzie, Deceased, Appellee, v. Thomas J. Friel et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,250.
    Heard in the second division, first district, this court at the October term, 1944;
    opinion filed May 29, 1945;
    rehearing denied June 12, 1945;
    released for publication June 14, 1945.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants;
    William J. Flaherty, of counsel; J. S. Pressman, for appellee;
    David H. Kraft, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


text:
    William S. Hennessey, Appellant, v. Kenneth Rafferty et al., Appellees.
    Gen. No. 42,492.
    Heard in the second division, first district, this court at the December term, 1942;
    opinion filed May 29, 1945;
    released for publication June 14, 1945.
    LeRoy V. Penwell, for appellant;
    Benjamin S. Mesirow, for certain appellees;
    Julius M. Lorenz, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    Dr. Arnold Schleifer, Appellant, v. Department of Registration and Education of State of Illinois, and Others, Appellees.
    Gen. No. 42,833.

      Heard in the second division, first district, this court at the October term, 1943;
    opinion filed May 29, 1945;
    released for publication June 14, 1945.
    Anna Svatik, for appellant;
    George F. Barrett, Attorney. General, for appellee;
    William C. Wines, Assistant Attorney General, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    In re Estate of Nicholas Keiser, Deceased.
    Gen. No. 43,193.

      Heard in the second division, first district, this court at the October term, 1944;
    opinion filed May 29, 1945;
    rehearing denied June 12, 1945;
    released for publication June 14, 1945.
    Julius E. Solomon, for appellant;
    Muench & Muench, for appellee;
    Morgan C. Muench, of counsel.
   Opinion by

Justice Friend.

Not to be published in full.


text:
    In re Estate of Girolamo Fiumefreddo, Deceased. John Fiumefreddo et al., Appellants.
    Gen. No. 43,210.
    Heard in the second division, first district, this court at the October term, 1944;
    opinion filed May 29, 1945;
    released for publication June 14, 1945.
    Fleck, Calcagno & Pollack and Owens & Owens, for appellants;
    David Alswang, Alexander H. Glick and Melbourne A. Chapp, for appellee.
   Opinion by

Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    Fred B. Tidd and A. R. Tidd, Trading as Fred B. Tidd Typesetting Company, Appellants, v. La Salle Industrial Finance Corporation, Appellee.
    Gen. No. 43,048.
    Heard in the second division, first district, this court at the April term, 1944;
    opinion filed May 29, 1945;
    rehearing denied June 12, 1945;
    released for publication June 14, 1945.
    Alfred M. Loeser and Harry D. Connor, for appellants;
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee;
    Isaac E. Ferguson, Frank C. Bernard and William V. Brooks, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Douglas Wilson, Appellee, v. Superb Cleaning and Dyeing Corporation and George Bjelland, Appellants.,
    Gen. No. 43,143.

      Heard in the second division, first district, this court at the October term, 1944;
    opinion filed May 29, 1945;
    released for publication June 14, 1945.
    Ross, Berchem & Schwantes, for appellants;
    Robert E. Dunne, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Mansfield Turner and Jannie Turner, Appellees, v. L. Singleman et al., Trading as J. S. Bartlett and Company, Defendants. L. E. Bartlett Trading as J. S. Bartlett and Company and L. Singleman, Appellants.
    Gen. No. 43,246.
    Heard in the second division, first district, this court at the October term, 1944;
    opinion filed May 29, 1945;
    released for publication June 14, 1945.
    Frederick R. Nyberg, for appellants;
    Charles A. Wilson, for appellees.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Laura L. Doll, Appellee, v. Continental Illinois National Bank and Trust Company of Chicago, Executor of Last Will and Testament of Charles T. Stevens, Deceased et al., Appellants.
    Gen. No. 43,269.
    Heard in the second division, first district, this court at the December term, 1944;
    opinion filed May 29, 1945;
    released for publication June 14, 1945.
    Ernest A. Eklund, for appellants;
    John N. Thornburn, of counsel;
    Reuel H. Grunewald and Robert F. Kolb, for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Mr. Justice Wolfe

text:
    Walter Strunk et al., Appellees, v. Eva A. Stronberg, Impleaded as Rose Stromberg et al., Appellants.
    Gen. No. 9,997.
    Heard in this court at the February term, 1945.
    Opinion filed May 28, 1945.
    Opinion modified and rehearing denied July 19, 1945.
    Released for publication July 19, 1945.
    Sears, O’Brien & Streit, of Aurora, and Arthur H. Shay, of Streator, for appellants; Barnabas F. Sears, Edward F. Streit and Ralph C. Putnam, Jr., all of Aurora, of counsel.
    Hibbs & Pool, of Ottawa, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This appeal involves four suits, three for personal injuries and one for wrongful death resulting from the collision of the automobile in which the injured persons, and one killed were riding, and the automobile of defendant, Eva Stronberg, being driven at time of the accident, in opposite directions on U. S. highway No. 51. Eva Stronberg and her employee, James Mc-Gonigal, were riding on the front seat of her car. The car, in which Walter Strunk, Mamie Chambers, Margaret Chambers Moriarity, George Marcus Chambers and Darrell Chambers, the injured persons were riding, was owned by George Marcus Chambers, and was driven by his son, Darrell Chambers. The son is not a party to this suit. The accident happened on December 14,1934. On January 22,1935, the four complaints were filed in the circuit court of LaSalle county. The pleadings in the four cases are similar except for the usual wrongful death allegations in that suit.

The original complaints allege that on December 14, 1934, the defendant, Eva Stronberg, owned an automobile then being driven south on IT. S. highway No. 51 toward the intersection of that highway and British Lane by the defendant, James McGonigal, as her agent; that plaintiff was then riding in an automobile being driven west on British Lane toward the intersection; that plaintiff and the driver of plaintiff’s automobile, were exercising due care; that defendants negligently propelled and operated their automobile into the intersection and thereby struck plaintiff’s automobile, causing personal injuries. The defendants’ answers allege that Eva Stronberg and not Mc-Gonigal was driving her automobile; that plaintiff’s automobile approached the intersection from the south; denies due care of plaintiff and his driver, and that Eva Stronberg negligently drove her automobile; alleges that the driver of the plaintiff’s car, as agent of the injured person, turned left at the intersection, without warning and without yielding the right of way contrary to the statutes, of the State of Illinois, thereby causing the collision, which both plaintiff and his driver could in the exercise of due care have avoided.

On October 23, 1942, the plaintiffs filed additional counts similar to the original complaints, but further alleged that the defendants were guilty of wilful and wanton misconduct as follows: The defendants, “with conscious indifference to consequences and an utter disregard of the life, limb and safety of others lawfully using said highway, wilfully and wantonly, ran and drove said automobile towards and into said intersection at a high, excessive, dangerous rate of speed, to-wit, at the rate of 70 miles per hour, without keeping and maintaining a reasonable lookout for other automobiles and persons riding therein at and near said intersection of said two highways, by reason of which wilfulness and wantonness on the part of the defendants, the said automobile being so driven by said McG-onigal, as aforesaid ran, and struck with great force and violence upon and against the automobile in which plaintiff was then and there riding . . . and thereby and then and there the said defendants wilfully and wantonly injured the plaintiff.”

The answers of the defendants specifically deny all the allegations of the additional counts. The answers allege an affirmative defense, that the plaintiff was injured as the result of plaintiff’s wilful and wanton misconduct; that the accident occurred on a bright day, that U. S. highway No. 51 for a long distance north and south of the intersection was a straight level highway; that the Chambers’ automobile was being driven north and stopped on the east half of the highway while the Stronberg automobile approached the intersection from the north, on the west half of the highway ; that Darrell Chambers and plaintiff saw, or could have seen by the exercise of due care, the Stronberg automobile approaching and that Darrell Chambers, contrary to subd. (5) of see. 33, par. 34, ch. 95A of Cahill’s Rev. Stat. for 1933, requiring him to give notice of his intention to turn left, and contrary to said statute requiring him to yield the right of way, wilfully and wantonly and without giving notice of his intention to do so, suddenly drove toward the west or northwest into the lane of the south bound traffic, in front of the Stronberg automobile, thereby causing the accident and the injuries complained of; that plaintiff’s injuries, if any, were caused by the wilful and wanton misconduct of plaintiff and his agent, Darrell Chambers.

By stipulation of the parties, the trial court, consolidated the cases for hearing and a jury trial was had. At the conclusion of the plaintiffs’ evidence, and again at the close of all of the evidence, the defendants moved for a directed verdict in their favor, and tendered instructions seeking withdrawal from consideration by the jury of the wilful and wanton count, filed on October 23, 1942. The court denied the motions and the instructions. The jury found the defendants guilty and assessed damages for each of the plaintiffs, in different amounts, aggregating $38,000. There was no special verdict, nor interrogatory submitted to the jury on the question of wilful and wanton misconduct of the defendants as charged in the additional count. Motions for judgments notwithstanding the verdicts, and for a new trial, were denied, and, after a remittitur of $2,000 on one of the verdicts, judgments were entered on the verdicts in favor of the plaintiffs. The defendants have perfected an appeal to this court.

The defendants having, by their tendered instructions, presented the issue to the court as to whether the wilful and wanton count should be considered by the jury, the trial court’s refusal to withdraw from the jury the consideration of defendants’ alleged wilful and wanton misconduct constitutes reversible error, if there is no evidence tending to prove the wilful and wanton allegations of the additional count. The defendants have preserved the point in their motion for a new trial. (Greene v. Noonan, 372 Ill. 286.) Although the question of wilful and wanton misconduct is usually an issue of fact to be decided by the jury, if the evidence, viewed in the most favorable light for the plaintiff, does not tend to show wilful and wanton acts done without regard to the safety of others, a verdict should be directed in favor of the defendant. (Morgan v. New York Cent. R. Co., 327 Ill. 339.) If there is no evidence in the record to support the allegations of wilful and wanton misconduct, the instructions tendered by the defendants should not have been refused and a verdict should have been directed with respect to the count charging wilful and wanton misconduct. (Trumbo v. Chicago B. S Q. R. Co., 389 Ill. 213.)

It appears from the record that the plaintiffs were riding in a two-seated Chevrolet automobile belonging to George Marcus Chambers which (about 3:30 o’clock in the afternoon of December 14, 1934), was being driven toward the north on U. S. arterial highway No. 51 in the direction of British Lane, by Darrell Chambers, age 20 years, a son of George Marcus Chambers. It was a clear day and the concrete pavement was dry. It was the intention of Darrell Chambers to drive toward the west into British Lane which extended east and west at a right angle to the highway. The highway in both directions, north and south of British Lane, was level and straight for' a distance of about four miles. West of the intersection, British Lane was 66 feet wide with a gravel roadbed 36 feet wide. Highway No. 51 was paved with concrete 18 feet wide with the usual black mark extending lengthwise along the center. Darrell as he approached the intersection, drove the Chambers ’ car on the east side of the pavement. When the car arrived near the southeast corner of the intersection, Darrell stopped it on the east side of the pavement. Two automobiles on highway No. 51 were approaching the intersection from the north at the time the Chambers’ car was standing where it had stopped. The automobile closer to the intersection, coming from the north, was being driven by one Smith Davis on the west side of the pavement, at the rate of 40 to 45 miles per hour. Davis reduced the speed of his car as he came near the intersection and passed the Chambers ’ car. The other car coming from the north and approaching the intersection was a Plymouth sedan owned by defendant, Eva Stronberg. It is the testimony on behalf of' the plaintiffs that defendant, James McGronigal, was driving the Stronberg car. The Stronberg car was travel-ling on the west side of the pavement at the speed of 65 to 70 miles an hour, which speed was maintained until there was a collision of the Chambers’ car and the Stronberg car. There is negative testimony to the effect that they did not hear a horn sounded, nor brakes applied to the Stronberg car before reaching and while entering the intersection.

By sec. 33, ch. 121, Smith-Hurd Ill. Rev. Stats. 1933, it is provided as follows: “ (5) No driver of a vehicle shall suddenly stop, or slow down without first signal-ling his intention with outstretched arm, or otherwise to those following closely in the rear nor shall he turn without signalling in a similar manner both to those following closely and those approaching from the opposite direction.”

Darrell Chambers, without giving a signal indicating that he was about to drive the Chambers’ car toward the west and across the west side of the pavement, shifted the gears of the car, drove the car west, or northwest, partly into British Lane. When the front of the Chambers’ car was about eight feet off the west side of the pavement, and moving into the lane, McGonigal drove the Stronberg car against the right rear fender and wheel of the Chambers’ car. The plaintiffs were thrown from the Chambers’ car, three of them were injured and Charles Marcus Chambers sustained fatal injuries. Two witnesses testified that the Stronberg car was approaching the intersection at the rate of 65 to 70 miles an hour when it was 500 to 600 feet from the intersection when Darrell drove the Chambers’ car toward the west, into the right of way for automobiles being driven from the north toward the south on the highway. One of the witnesses who so testified was riding on the front seat of the Chambers’ car on the right side thereof. The other witness was in a field and about 100 feet west of the highway and 150 feet south of the lane.

There is also evidence in the record on behalf of the plaintiffs that Eva Stronberg was sitting on the front seat of her car to the right of McGonigal and as he drove toward the intersection he had his head turned toward Eva Stronberg.

The evidence shows that when the Stronberg car was from 500 to 600 feet from the Chambers ’ car, and moving at the rate of 60 to 70 miles an hour, Darrell Chambers drove his car into the course of the car of the defendants. The driver of the Stronberg car had the right to assume that the driver of the Chambers’ car would yield the right of way to him or by signal give notice of his intention to make a left turn in front of the Stronberg car. There was no such signal given by Darrell Chambers.

There is no direct evidence, nor facts nor circumstances in evidence from which the legitimate inference may be drawn, that the defendants knew, or by the exercise of reasonable care could have known, that the driver of the Chambers’ car was about to drive his car into British Lane at the time the Stronberg car approached the intersection, The driver of the Stronberg car was not bound to anticipate that the Chambers’ car would be driven in front of him in his lane of travel. He was entitled to act on the assumption that the driver of the Chambers’ car would yield to him the right of way. It is no answer to this proposition to reply that the driver of the Chambers’ car used his best judgment to determine if he had sufficient time to turn and pass safely in front of the other car, considering the distance the cars were from each other and the speed of the car coming toward him. Nor is it sufficient to say on behalf of the plaintiffs that the driver of the Chambers’ car had a right to assume that the other car was approaching at a “lawful” rate of speed. Darrell Chambers, testified that he glanced at the Stronberg car when it was 500 or 600 feet away and then drove across the highway without again looking at the Stronberg -car as it approached him. As above stated, two other witnesses saw the car approaching the intersection at the rate of 60 to 70 miles per hour when it was 500 or 600 feet from the intersection. Darrell Chambers was required to use ordinary care, commensurate with the danger then existing to determine whether he should, or should not, yield the right of way to the Stronberg car; and the driver of the Stronberg car had the right to rely on Darrell Chambers exercising such care.

It is our opinion that the defendants cannot be held liable for wilful and wanton misconduct, under the facts and circumstances appearing in evidence, unless the driver of the Stronberg car was operating it in a wilful and wanton manner after the defendants became aware of the perilous position of the Chambers’ car there in the defendants ’ right of way. Or, that the defendants did not exercise reasonable care to see the Chambers’ car in a position of peril in front of them in time to so operate their car to avoid striking the Chambers’ car and then wilfully and wantonly drove their car against the Chambers’ car. (Morgan v. New York Cent. R. Co., 327 Ill. 339.)

As before stated, McGonigal had the right to assume that Darrell Chambers, acting as a reasonable and prudent person, would yield the right of way to him as he drove the car in his lane of travel while the Chambers’ car stood at the intersection apparently waiting for the Stronberg car to pass through the intersection. McGonigal could not be held for a greater degree of care, under the circumstances, than to use reasonable care to discover that the plaintiffs were in a position of danger and not to wilfully and wantonly drive their car against the Chambers’ car. (Morgan v. New York Cent. R. Co., 327 Ill. 339.)

By sec. 22, ch. 121 of Smith-Hurd Ill. Rev. Stats., 1933, it was also provided, in part, as follows: that if the speed of a motor vehicle, outside the limits of an incorporated city, town or village exceeds the speed of 45 miles an hour, “such speed shall be prima facie evidence that the person operating such motor vehicle or motor bicycle is running at a rate greater than is reasonable and proper having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person. ’ ’ Our Supreme Court has held in the cases of Bartolucci v. Falleti, 382 Ill. 168, and Clarke v. Storchak, 384 Ill. 564, that a failure to comply with a speed statute for automobiles does not necessarily establish wilfulness or wantonness. The rate of speed and the attending circumstances must also be taken into consideration. The view of the witness Strunk, who was seated on the right side of the front seat of the Chambers’ car, who testified that McGonigal had his head turned toward Eva Stronberg as he drove toward the intersection, was only momentary. Other evidence relative to this circumstance does not appear in the evidence, excepting the denial of McGonigal that he was driving the car at the time and before the accident.

There is no evidence tending to prove that McGonigal acted with such a degree of negligence that from his knowledge of the conditions and surrounding circumstances he must have been conscious that his conduct would naturally and probably result in injury to the plaintiffs and yet acted in utter disregard of their safety. The evidence viewed in its most favorable light for. the plaintiffs, does not tend to show a wilful and wanton act done without regard to the safety of others. (Morgan v. New York Cent. R. Co., 327 Ill. 339; Trumbo v. Chicago, B. S Q. R. Co., supra.)

The judgment of the trial court is reversed and the case remanded.

Judgment reversed and remanded.