Appeal from the Circuit Court of Rock Island county; the Hon.
GEORGE O. HEBEL, Judge, presiding. Affirmed.
Rehearing denied March 13, 1961.
This is an action brought on behalf of a minor plaintiff, Michael Stowers, 5 years and 2 months old, to recover damages for injuries he received April 28, 1958 when he was run over by the defendant Charles Carp's truck. The jury returned a verdict for the plaintiff in the amount of $15,000.00, judgment was entered thereon, the defendant's post trial motions for judgment notwithstanding the verdict and for new trial were denied, and this appeal by the defendant followed. The defendant's motion for directed verdict at the close of the plaintiff's evidence had been denied; and on the defendant's similar motion at the close of all the evidence the Court had reserved a ruling and after the verdict the Court denied that motion.
The complaint charges that on or about April 28th, 1958 two employees of the defendant drove a large van or truck into Arsenal Courts, a housing project in the City of Rock Island; the plaintiff lived in Arsenal Courts; the employees then and there operated the truck in a northerly direction in a narrow alley lying between Third and Fourth Streets in Arsenal Courts; a great many rear yards there abutted on the alley and the employees knew, or, in the exercise of reasonable care, should have known that a large number of children lived in the homes on both sides of the alley and used the rear yards of their homes as a play area; the employees in the operation of the truck or van struck and injured the plaintiff by reason of negligence in that they failed to maintain a proper lookout, failed to stop although they should have known that they were running over a child, failed to sound a warning, and failed to use due care or sound the horn. The defendant's answer so far as now significant denies the charges and no questions are raised here on the pleadings.
The defendant's theory is that there is a complete failure of competent evidence of negligence on the part of the defendant and the allegations of negligence in the complaint under the facts did not constitute negligence, and the court should have directed a verdict in his favor or allowed his motion for judgment notwithstanding the verdict; in addition, it is the defendant's theory that the court erred in refusing to grant his right to take the discovery deposition of the plaintiff, in declaring the plaintiff incompetent to testify, in refusing certain of the defendant's instructions and in giving certain of the plaintiff's instructions over the defendant's objections; the judgment is against the manifest weight of the evidence; and the verdict is grossly excessive, manifesting passion and prejudice.
The plaintiff's theory is that the question of the defendant's alleged negligence was a question of fact, properly submitted to the jury, and the defendant was not entitled to a judgment notwithstanding the verdict; the verdict is not contrary to the manifest weight of the evidence; the damages found in the verdict are not excessive; the court did not abuse its discretion in determining the plaintiff was not a competent witness; there were no errors in the instructions, and the defendant is not in a good position to complain as to that because he tendered an excessive number of instructions.
All of the witnesses were witnesses called by the plaintiff except the defendant who was called under Section 60 of the Civil Practice Act, and except a court reporter witness called by the defendant who had taken a pretrial statement of one of the plaintiff's witnesses. The evidence is substantially as follows:
On April 28, 1958 the plaintiff Michael Stowers, age 5 years and 2 months, was living at 1454 4th Street with his parents and brothers and sisters in an apartment building which was part of a housing development known as Arsenal Courts, in Rock Island. Four large apartment buildings faced east on 4th Street and three large apartment buildings faced west on 3d Street. An alley ran north and south between 3rd and 4th Streets at the rear of these buildings. The alley was narrow being only nine feet wide. The back yards behind the apartment buildings on both streets were small the distance between the rear doors of the buildings and the alley being only 23 feet 8 inches. There were no fences extending north and south along either side of the alley. The view of the back yards was relatively unobstructed. There were no garages or other buildings along the alley the only obstructions being some clothes poles and a few trees. Fifty-six different families lived in those seven apartment buildings, each family having an average of three children, so that over one hundred and fifty children lived along and played in the back yards abutting this particular alley. The alley was used by vehicles and trucks.
On the day in question the defendant Charles Carp, who operated a furniture store known as Peoples Furniture Company, or Cheerful Charley's, dispatched a large van-type truck to Arsenal Courts to repossess some furniture from a Mrs. Dufur, who lived in one of the apartment buildings, her address being 1503 3rd Street. The truck was 18 feet long, had a 2 1/2 foot tailgate, weighed 9280 pounds, was about 8 feet wide, and its body was 10 1/2 feet high. The truck was operated by two men, a driver and a helper. Both the driver and the helper had been in Arsenal Courts on a number of previous occasions and were familiar with the narrow alleys and the fact that a great many small children customarily played in the neighborhood. The truck arrived at around 10 a.m. and the driver and helper drove the truck into the nine foot alley at the rear of Mrs. Dufur's residence and stopped at the rear in the alley facing north. A number of small children gathered around the large van. Various witnesses estimated the number of children as being 8 or 10, referring to them as "quite a crowd." Michael Stowers was among the group, and he held the door of Mrs. Dufur's residence open while the two men took out Mrs. Dufur's furniture. It took them from three-quarters of an hour to an hour to remove that furniture. Mrs. Dufur's address was about a block south of where the later accident occurred. They still had to pick up Mrs. Dufur's stove, which was at a different address. As they prepared to leave, the driver and helper "shooed" all the children away from the truck. One of Mrs. Dufur's small children cried and raised quite a fuss because he wanted to go along too, and she placed her child in the yard away from the truck. The driver, Gail Felsman, got in, the helper, Frank Freeborn, got in the middle, and Mrs. Dufur, who was only 5 feet 1/4 inch tall, got into the right outside seat of the high cab of the van. As the truck proceeded slowly northward up the alley, they may have been conversing Mrs. Dufur was giving the driver and his helper directions as to how to get to the address where her stove was located. The truck was travelling about 5-10 m.p.h.
The weather was clear, though dreary, and the sun was not out. The alley was dry. The windows of the cab were down. The truck was in good shape, and the motor was not particularly noisy. Two large rear vision exterior anti-diagonal mirrors were on the truck, one on each side, so that both the driver and his helper could have obtained a good view to the rear along both sides of the truck the driver could see through the mirrors to the rear of both sides of the truck and the party in the middle could see in the right hand mirror by moving his head a few inches.
After the truck had gone up the alley about 200 feet and was behind the residence of a Mrs. Self, who lived at 1402 4th Street, the truck struck a garbage can alongside the alley. Mrs. Self, who was seated at her kitchen table drinking coffee, heard the scream of a child, jumped up and ran to her window. Her kitchen faced the alley. She saw the plaintiff, Michael Stowers, under the truck trying to crawl away from the right rear dual wheels. The truck was going at a slow pace, and the right rear wheels passed over the lower portion of Michael's body. Mrs. Self ran to her rear door, and yelled at the truck driver to stop. The truck stopped. She did not know what the plaintiff was doing prior to this time. When she first saw him his legs were going over the truck. The truck was going over him and he was "scooting" at the same time. The boy was lying on the right or passenger's side.
Mrs. Morris, who lived 113 feet further north up the alley, at 1355 3rd Street, was in her kitchen doing dishes, at the back of her apartment. She also heard the cry of a child. She looked out the back door, saw a truck coming, and the plaintiff was on the ground in back of the truck. The truck was moving very slowly. She hollered to the driver to stop. She went outside. She saw one turned over garbage can. The plaintiff was lying with his head to the east on the ground and his legs in the alley. She did not see the accident.
The truck stopped within 20 feet of the plaintiff lying in the alley, and Mrs. Dufur, the helper, and the driver got out. Mrs. Self told the driver that he had run over a child, but the driver said that he just thought he was running over a garbage can. A garbage can was down in the alley, the lid crushed. Michael was lying face up, the upper half of his body being in Mrs. Self's back yard, the lower half of his body being in the alley.
No one in the truck heard or saw the plaintiff just prior to the impact, or felt the impact ...