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Kronenberger v. Husky

JANUARY 31, 1967.

BRIAN A. KRONENBERGER, A MINOR, BY CLEO KRONENBERGER, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

MILDRED I. HUSKY AND WILLIAM HUSKY, D/B/A WEST SIDE PRODUCE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County; the Hon. JOSEPH FLEMING, Judge, presiding. Judgment reversed and cause remanded for new trial.

GOLDENHERSH, J.

Plaintiff, Brian A. Kronenberger, a minor, suing by his mother and next friend, appeals from the judgment of the Circuit Court of St. Clair County, entered on a jury verdict finding for the defendants, in plaintiff's action for damages for personal injuries.

On July 3, 1962, plaintiff, then 10 years of age, was riding a bicycle in a southerly direction on South Fifteenth Street in Belleville. South Fifteenth Street is a blacktop surfaced street. Route 13, also known as South Belt, or South Belt Line, intersects South Fifteenth Street. At the intersection, there are stop signs posted for north and south traffic on South Fifteenth Street. The weather was good and the street surfaces were dry. Plaintiff was accompanied by his brother, then 12 years of age, and another boy 16 years of age. The boys had ridden a distance of about two blocks on South Fifteenth Street. They were riding on the east side of South Fifteenth Street, and plaintiff was about 25 feet behind his brother. Plaintiff's brother reached the intersection, and crossed South Belt, without stopping. Plaintiff reached the intersection, slowed a little, and proceeded across South Belt.

Defendant, Mildred I. Husky, had turned onto South Belt at Seventeenth Street, and had driven two blocks to the east, toward South Fifteenth Street. She saw no other traffic, either vehicular or bicycles, in the two blocks. She saw plaintiff for the first time as she was "right at the intersection," and "he was right at the South Belt Line." After being struck, plaintiff was dragged on the left front side of defendant's automobile until the car was stopped, and ended up in front of the car.

Defendant's automobile came to rest against a guard post east of South Fifteenth Street, and on the south side of South Belt, knocking the post over. Skid marks starting at the center of the intersection measured 72 feet, 8 inches to the post. The bicycle came to rest 43 feet 6 inches in front of the car, and plaintiff ended up halfway between the car and the bicycle. Defendant did not sound her horn, and did not see plaintiff's brother.

Plaintiff was in the 4th grade and had ridden a bicycle for about 2 years, mostly around a playground near his home. He thought stop signs at intersections were only for cars, and did not know that bicyclists and pedestrians were supposed to stop at stop signs.

Plaintiff contends that the court erred in permitting improper argument during defendants' counsel's closing argument. Plaintiff argues that the defendants' attorney inferred that defendants were not insured, and relying upon Pomrenke v. Betzelberger, 41 Ill. App.2d 307, 190 N.E.2d 522, and Wise v. Hayunga, 30 Ill. App.2d 324, 174 N.E.2d 399, contends that the court erred in failing to strike the argument, or in the alternative, permit plaintiff's counsel to reply to it. We have examined defendants' closing argument, and in the context in which the statement was made, hold that there was no error in the court's ruling.

Plaintiff argues further that the court erred in permitting counsel for defendants, in closing argument, to ask the jury to place itself in the position in which defendant, Mildred Husky, found herself at the time of the occurrence. We have examined the argument and the authorities cited by plaintiff, (see Copeland v. Johnson, 63 Ill. App.2d 361, 211 N.E.2d 387) and conclude that counsel here did not go so far in the argument as did counsel in Copeland, and in considering the statement made, in context with the remainder of that portion of defense counsel's argument, hold that the court's ruling was not erroneous.

Plaintiff contends that the court erred in giving defendants' instruction 15. The instruction, marked IPI 70.03 — modified, reads as follows:

"At the time of the occurrence in question there was in force in the State of Illinois statutes governing the operation of bicycles as follows:

"(a) Every person riding a bicycle upon a roadway shall be subject to the provisions of this Act (Uniform Act regulating traffic on Highways) applicable to the driver of a vehicle, except those provisions which by their nature can have no application.

"(b) No driver of a vehicle . . . shall disobey the instructions of any official traffic control device placed in accordance with the provisions of this Act, unless at the time otherwise directed by a police officer.

"(c) Every driver of a vehicle approaching a stop sign shall stop before entering the crosswalk on the near side of the intersection or in the event there is no crosswalk shall stop at a clearly marked stop line, but, if none, then at a point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting highway before entering the intersection except when directed to proceed by a police officer or traffic control signal.

"(d) The driver of a vehicle shall stop as required by the previous quoted section of the statute at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate ...


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