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Piechalak v. Liberty Trucking Co.

APRIL 28, 1965.

JO ANN PIECHALAK, A MINOR, BY PATRICIA PIECHALAK, HER MOTHER AND NEXT FRIEND, PLAINTIFF-PETITIONER,

v.

LIBERTY TRUCKING COMPANY, AN ILLINOIS CORPORATION, AND MARVIN C. LEMBKE, DEFENDANTS-RESPONDENTS.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from a verdict and judgment in favor of defendants, leave to appeal having been granted pursuant to section 76 of the Civil Practice Act. (Ill Rev Stats 1963, c 110, § 76.)

Plaintiff contends that the verdict was contrary to the manifest weight of the evidence and that she was prejudiced by trial errors.

The accident took place between 8:45 and 8:55 p.m. on January 18, 1960, about 150 feet south of Archer Avenue on Pulaski Road in the northbound lane. The area was primarily commercial and the only structure on the southeast corner was an Oklahoma gas station.

Plaintiff, Jo Ann Piechalak, nine years old at the time of the occurrence, testified that on that evening the weather was "bad . . . windy, cold and snowing"; that she accompanied "my mother, sister (Patricia) and a man friend of my mother" to a bowling alley on Archer Avenue near Pulaski Road; that after they left the alley, while her mother and her companion were getting the car, she and her sister went to a nearby telephone booth (on the southwest corner) where "we were playing around"; that she (plaintiff) decided to get some candy. Plaintiff testified that:

I left the telephone booth and started to cross the street. I looked both ways from the curb and started to run across the street. . . . I didn't see any vehicles coming. I started to run across the street. My sister didn't say anything to me and I don't remember turning my head back. I'm sure the front of the truck come in contact with my body.

Plaintiff's older sister (Patricia, age thirteen at the time of the accident) testified that while they were at the telephone booth "my sister then decided to go for some candy across the street"; that plaintiff "left the booth and stopped at the curb before she started to cross Pulaski. She then ran across the street." She further testified that "Jo Ann looked both ways before crossing the street"; that the "weather conditions . . . were very bad and visibility was rather poor" but that "you could see 2 blocks in either direction."

Plaintiff's occurrence witness, Thomas J. Sandlin, testified:

The lighting at the corner was very good. Visibility was pretty good. I was standing on the southwest corner of Pulaski and Archer awaiting a southbound bus and happened to be looking South. I saw these two small girls playing, kind of milling around the phone booth which is approximately 75 feet south of where I stood. The smaller one of the two ran out to the curb and stepped over the curb a couple of steps looking back over her shoulder as though she were in conversation with the other and then she started running across Pulaski Road toward the south entrance to the Oklahoma Station. As she made progress, I observed the big truck coming. When I saw the truck, the little girl was half way across the street. The truck was somewhere between the railroad track and the gas station driveway when I observed him. The truck and girl came in contact. I do not know what part of the girl was struck, but she cleared the left front wheel and fender, about the center of the cab. She went down, the truck went over her and she wound up in a slumping position on the pavement under the dolly wheels. She was a little to the left of the center of the tractor trailer, almost in the center. She was slumping in a heap, like. The driver came to an immediate stop and ran around the front end of the cab to the little girl. I noticed no other traffic around at that time.

. . . . . .

The truck was going about 15 to 25 miles per hour. The truck went about 10 to 15 feet after striking the little girl.

Defendant presented Stanley Boucek who testified that while on the east side of Pulaski Avenue:

I observed two little girls running in and out of the telephone booth and the traffic coming down Pulaski. I then heard loud voices from the older girl saying, "Don't go, don't go," as the little one started to run across the street. I then saw ...


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