Duffy and Hastings, Senior Circuit Judges, and Swygert, Circuit Judge. Duffy, Senior Circuit Judge (dissenting).
HASTINGS, Senior Circuit Judge.
Nancy Leonteos (plaintiff), a six-year old female child, brought this diversity action by Theodore Leonteos, her father and next friend, against Mary Haase (defendant) and her father Charles Haase. Plaintiff sought recovery of damages for personal injuries resulting from her physical contact with an automobile alleged to have been negligently driven by defendant.
Following a trial by jury, a verdict was returned favorable to defendants and judgment was entered thereon. Plaintiff appealed.
Plaintiff charges prejudicial error arising from the cross-examination of two witnesses, closing argument by defendants' attorney and certain jury instructions. Plaintiff also contends the verdict is not supported by the manifest weight of the evidence and complains of the denial of her motion for directed verdict and post-trial motions.
Viewing the evidence in the light most favorable to defendants, together with all inferences reasonably to be drawn, therefrom, as we are required to do on this appeal, and considering other facts not in dispute, the jury could have found the following to be true.
The accident in question happened on October 31, 1964, shortly before noon, in the village of Wheeling, Cook County, Illinois. The place was at the intersection of North Dennis Road and Elmhurst Road. At that place Elmhurst Road was a two-lane public street running in a northerly and southerly direction. North Dennis Road was a two-lane east-west public street which entered Elmhurst Road from the east where it dead ends to form a T-intersection. Dennis did not continue west of Elmhurst. Both streets were paved with blacktop material. The weather was clear and the pavements were dry.
At such time and place, defendant Mary Haase was driving her father's Anglia car from a nearby shopping center. She was seventeen years of age and properly licensed to drive. It was stipulated she was driving as the agent of her father. An Anglia is a foreign car, smaller than standard. In the car were defendant's sister Peggy, age 15, and two girl friends, Robin Craven and Linda Knudtson. Defendant drove north in the northbound lane of Elmhurst, and the occupants were engaged in conversation. There was nothing to obstruct her view as she approached Dennis.
At the same time, the six-year old plaintiff, together with her sister Kim, age 8, and girl friend Terry Abajian, age 8, were walking together. They were dressed in Halloween costumes and holding hands. They were walking west from the east side of Elmhurst starting to cross Elmhurst between the lines of the east-west crosswalk running from the south side of Dennis. Kim was in the middle, Terry was on her left (south side) and plaintiff was on Kim's right (north side).
Defendant was driving approximately 30 to 35 miles per hour*fn1 and was about one block south of the three children when she first saw them as they started to cross from the east curb. She applied her brakes and kept them applied until she saw the children return to the curb. She never accelerated the car again before the accident. She had downshifted from fourth to third to second gear in this period of time and had reduced her speed to about 10 m.p.h. She released her foot brake but did not remove her foot from it. Suddenly plaintiff broke her hand loose from Kim's hand and darted in front of defendant's car. Defendant "slammed on" her brakes and turned her car to her left (away from the child) but was unable to stop before colliding with plaintiff. The right side of the right front fender or bumper came in contact with plaintiff, who sustained painful injuries. Defendant's car came to a complete stop about 10 feet from the point of impact. It left skid marks for a distance of 19 feet 8 1/2 inches.
Defendant was given a traffic ticket by a local police officer for failure to yield the right of way to a pedestrian. From her home in Indiana, she paid her fine of $10 by mail as the traffic court judge advised her by letter that she could do.
The evidence of the occurrence was given by the three little girls; the four older girls in defendant's car; an eyewitness Wolff who was driving a car south on Elmhurst approaching the scene of the accident; an eyewitness Hertzner who was waiting in his car to leave the shopping center and was facing toward the scene; an eyewitness pedestrian O'Reilley who was across the street and either a half block or a block away. A Wheeling police officer Conte came to the scene, took short statements from Wolff, O'Reilley and defendant and filed an accident report.
Other witnesses were concerned with plaintiff's injuries, the nature and extent of which are not in dispute on this appeal.
As is often the case with testimony concerning an automobile accident, the evidence here in several respects is in sharp dispute and rather hotly contested. The testimony of the ...