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Deeke v. Steffke Freight Co.

JUNE 9, 1964.

ELMER H. DEEKE AND TANYA DEEKE, BY ELMER H. DEEKE, HER FATHER AND NEXT FRIEND (TANYA DEEKE, BY HER MOTHER AND NEXT FRIEND, LILLIAN E. DEEKE), APPELLANTS,

v.

STEFFKE FREIGHT CO., A CORPORATION, AND EDMOND L. BLOCK, APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. THOMAS J. MORAN, Judge, presiding. Judgment affirmed.

SCHEINEMAN, J.

This appeal results from a judgment on a jury verdict in favor of defendants. The injured party was a minor child aged 4 at the time of the occurrence and aged 6 at the trial.

The accident occurred about 1 p.m. on a cloudy, but dry day, on a main-traveled street route through a city. This main road runs north-south through a combination residential and business area with a posted speed limit of 35 m.p.h. The plaintiff attempted to cross the roadway from west to east approximately in the middle of a block between cross streets, and she was hit at about the center line of the roadway as defendants' tractor and semi-trailer proceeded north.

Since it is contended that the verdict is contrary to the manifest weight of the evidence, it becomes necessary to summarize the testimony.

The injured plaintiff stated that, in company with her two-year-old brother, she was on her way home and had stopped at the side of the road and looked both ways. She saw a car coming from the north and going south, let it go by, saw nothing coming from the south and then proceeded to cross. As she got out toward the middle of the street, her brother let go of her hand and ran back while she continued on and was hit. She heard no horn.

The driver of the southbound car mentioned by the plaintiff, was called as a witness in her behalf. He stated that as he drove south, he noticed two children on the west side of the road. There was no traffic immediately ahead of him, and he knew of none behind him. Just as he passed the children, he noticed them start to cross the street back of his car at the time defendants' truck was approaching from the south. When he met the front end of the truck and was passing it, the trailer was then skidding, and when his car was about at the rear of the trailer, the truck struck the child.

The driver of defendants' truck testified he was going about 28 m.p.h., that he was acquainted with the area, and that the air brakes had been checked and equalized that morning. When he first noticed the children, they were almost to the center of the roadway going at "a fast walk." He applied his brakes fully, and they locked. There is other evidence that in this condition the trailer bounced along with much jarring and noise. An officer paced off the length of the skid marks and found them to be 64 feet. The total length of the vehicle was about 45 feet, and it was not loaded.

A lineman working on a telephone pole in the vicinity, heard the screech of brakes, saw the truck skidding along the road, and saw the child "running" to the east across the road. He saw the girl come in contact with the left front portion of the truck but was unable to say whether the truck struck her or she ran into it.

Plaintiffs' argument is that since the truck driver did not see the children until they were near the center of the road, and did not know exactly where they had come from, this shows he was not keeping a proper lookout and control.

This overlooks the fact that the children started to cross the street behind the southbound car before it met the northbound truck. It is obvious that, at this moment, the truck driver could not see the children and did not see them until the children had advanced far enough to come into view behind the car, or the car had moved far enough to cease blocking the view. In this emergency he immediately applied the air brakes, and the jumping or skidding had already begun by the time the southbound car came even with the front of the truck.

If we accept this testimony as true, it necessarily presents a jury question as to whether the truck driver was negligent or whether he was merely confronted by an unforeseen condition when the children ran, or walked fast, into his path from behind a car approaching him from the north. We cannot say that the jury's verdict is so contrary to the evidence that it should be set aside. Whether defendant was negligent is ordinarily a question of fact for the jury. Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74. To hold that the verdict is against the manifest weight of the evidence requires that an opposite conclusion be clearly evident. Corrado v. Bingham, 17 Ill. App.2d 537, 150 N.E.2d 837. No such clear conclusion is found.

It is next contended that the court erred in rulings on instructions. The main criticism is directed at defendants' instruction which was IPI No. 70.03, and it reads as follows:

"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:

"Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the ...


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