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Maddox v. Smith

FEBRUARY 7, 1966.




Appeal from the Circuit Court for the Sixteenth Judicial Circuit, Kane County; the Hon. CHARLES G. SEIDEL, Judge, presiding. Judgment affirmed.


Plaintiff Bobby Maddox, a four-year-old minor, was struck by an automobile driven by the defendant while he was running across South Seventh Avenue in St. Charles. He filed suit for his personal injuries through his mother and next friend. A jury found the issues in favor of the defendant. After the denial of his motion for a new trial, this appeal followed.

Plaintiff charges as grounds for reversal that the trial court erred in denying plaintiff's motion for a directed verdict, in refusing to give certain instructions tendered by plaintiff and that the verdict was the result of passion and prejudice induced by improper arguments of counsel for defendant, as well as improper statements made by a perspective petit juror in another case.

Plaintiff contends he was entitled to a directed verdict in his favor since he was under the age of seven years; and therefore, incapable of being guilty of contributory negligence and because there is evidence in the record of the defendant's negligence.

Defendant was the only eyewitness to the occurrence. She testified that she resided on South Fifth Place in St. Charles about two blocks from the accident scene. She had traveled on South Seventh Avenue regularly and on the day in question she left her home around 9:00 o'clock in the morning for her mother-in-law's home. Her fourteen-month-old son was sitting in the front seat of the automobile beside her. She traveled northeasterly on South Fifth Place and stopped at the intersection of South Seventh Avenue to let a car proceeding from the opposite direction pass before turning north onto South Seventh Avenue.

She went on to testify that South Seventh Avenue is a two-lane paved residential street and that the accident occurred about a block from South Fifth Avenue. She stated that when she first saw the plaintiff she was traveling between 20 and 25 miles per hour and was 50 to 100 feet from him. He was standing on the east side off the roadway on the grass. He was then standing still, looking across the street to the west. She further testified that she did not anticipate the plaintiff crossing the street and that she had taken her foot off the gas pedal as an automatic reaction because a child is so unpredictable. She disclosed that about the time she had her foot off the gas pedal, the plaintiff ran in front of her and she applied the brake. She also pulled her car to the left trying to avoid hitting him and claimed there was no time to sound her horn. She stated she could not tell if the plaintiff looked in her direction before he was hit but believed that he did not. She related that her car was skidding when the impact occurred but did not know how far she traveled after the impact.

A police officer who investigated the occurrence testified that South Seventh Avenue is a heavily traveled road with a speed limit of thirty miles per hour. He noticed that there were blood spots approximately 24 feet in front of the car and some 9 feet from the west curb. He paced off skidmarks and found them to be 30 to 33 feet. He testified that based on his study of charts pertaining to stopping distances of cars with good brakes on dry pavement, a car traveling twenty-five miles per hour would require 40 to 42 feet to stop after the brake pedal is applied and that a car traveling thirty miles per hour would require 60 feet to stop after the brake pedal is applied.

Another witness, Erskine Pritchett, testified that he came to the scene after the accident. He saw skidmarks and measured them with a tape. The skidmarks began close to the south side of a driveway and extended 40 to 45 feet to the northwest of the driveway. He says the skidmarks were 54 feet long.

It would appear that when the defendant first saw the boy she was driving her car within the posted speed limit on a dry pavement during the daylight hours. The boy was standing on the grass parkway. Defendant was under no obligation under these circumstances to sound her horn at that time since Chapter 95 1/2, Section 212 of the Illinois Revised Statutes applies only where the pedestrian is on the roadway. The defendant did, according to her testimony, take her foot from the accelerator and when she observed the boy suddenly dart into the roadway she applied her brakes sufficiently hard to lay down skidmarks and she turned to the left in an effort to avoid him. She testified that she did not at that time have an opportunity to sound her horn. We do not find her guilty of negligence as a matter of law in failing to sound her horn under those circumstances.

Further, there is no satisfactory evidence that the defendant was guilty of driving at an excessive speed. From the testimony of the police officer and the witness Pritchett it would appear that the skidmarks were either 30 to 33 feet in length or 54 feet in length. Based on this evidence the defendant was traveling either slightly less than twenty-five miles an hour or slightly less than thirty miles per hour and either speed was a lawful speed under the circumstances.

We believe that whether defendant was negligent in the operation of her automobile was properly a question of fact for the jury to decide. In the case of Turner v. Seyfert, 44 Ill. App.2d 281, 194 N.E.2d 529 (1963), the court stated at page 285:

"When the evidence is all in, and a motion for a n.o.v. or for a directed verdict is made by the plaintiff, the trial court must consider all of the evidence in its aspect most favorable to the defendant, together with all reasonable inferences to be drawn therefrom, and if when so considered there is any evidence standing alone and considered to be true, together with the inferences that may legitimately be drawn therefrom, the court should not grant the motion."

We next direct our attention to Plaintiff's Instructions No. 8 and No. 10 refused by the trial judge. Instruction No. 8 contained only the second paragraph of IPI Instruction No. 70.03. The court did allow Plaintiff's Instruction No. 13, which contained both paragraphs of IPI No. 70.03. This was proper. Deeke v. Steffke Freight Co., 50 Ill. App.2d 1, 199 N.E.2d 442 (1964).

Plaintiff attempts to distinguish the Deeke case ruling upon the difference of the facts between the two cases. We have examined this argument carefully and cannot accept it. We affirm the reasoning of the opinion in the Deeke case in pointing out that the two provisions of the statute are applicable and should not be separated in this type of case since the one counterbalances the other. The two provisions of the statute, taken together, make it clear that the right-of-way given to the pedestrian at a crosswalk and not other points and the ...

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