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Kordik v. Kenar

JUNE 23, 1969.

JOHN KORDIK, PLAINTIFF-APPELLEE,

v.

LOIS KENAR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding. Reversed and remanded.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 28, 1969.

John Kordik, plaintiff, brought this action against Lois Kenar, defendant, to recover damages for personal injuries. The matter was tried before a jury and at the conclusion of the evidence the court directed a verdict in favor of the plaintiff on the issue of liability. The jury assessed the damages in the sum of $4,500 and the defendant appeals from the judgment rendered on the verdict for that sum.

Plaintiff and Jerome Dolski, a witness for the plaintiff, were the only people to testify about the occurrence that gave rise to the plaintiff's injuries. John Kordik testified that on December 31, 1961, about noon, he was on his way to church with his six-year-old son. He parked his car against the curb on Austin Avenue in Chicago. Snow was piled up along the curb, forcing the plaintiff and his son to exit from the left side of the car, the side closest to the traffic. Plaintiff testified that when he got out of the car he did not see any cars coming. He locked his car and proceeded to walk on the street in a southerly direction in the southbound traffic lane of Austin Avenue. As he walked along, his body was about six inches from the left side of the cars parked along the street. The plaintiff stated that his son walked in front of him and when his son turned into the driveway, the plaintiff was struck by a car. He said he did not hear a horn or a warning of any kind.

On cross-examination he was asked:

Q. Now, you looked and went past your car to the front of your car, is that right?

A. Yes.

Q. Now, at that time did you look to see if there was any traffic coming?

A. No, I didn't. I was worried about getting in because of traffic going by there.

The plaintiff further testified that he was not in a crosswalk, that he was walking in the southbound lane of traffic with his back towards the approaching traffic and that he never saw the car that struck him.

Jerome Dolski testified that he was driving slowly north on Austin Avenue when he saw plaintiff get out of his car and walk south with a boy in front of him. "As he went up to the driveway to follow his son, he turned his back, he had his hand on the car as if he was leaning — and this '59 or '60 white Chevrolet convertible was going south. And it appeared to me that it nipped him on the side of his hip, you know, and I seen the man fall down." The witness further testified that somebody brought the driver of the white Chevrolet convertible back to the scene of the accident and "she [the driver] said `I didn't hit anybody.'" On cross-examination he testified that the plaintiff was in the middle of the block, that he was walking with his back to the traffic and that he never saw the plaintiff turn around and look at the cars coming south on Austin Avenue.

The defendant initially contends that the trial court erred in denying defendant's motion for a directed verdict and judgment notwithstanding the verdict. It is argued that the record is devoid of any evidence which would establish that Lois Kenar, the defendant, was identified as the driver of the vehicle that struck the plaintiff.

It is true that neither the plaintiff "nor the witness Dolski identified or named the driver of the car involved in the occurrence." However, in the defendant's answer to paragraphs 1 and 2 of the complaint it was admitted that at the time of the occurrence the defendant owned or possessed a 1960 Chevrolet convertible which defendant was driving in a southerly direction, along and upon said Austin Avenue, toward, near, and at the place where plaintiff was walking. Further, in paragraph three of the complaint it was averred that it was the duty of defendant to drive her automobile with reasonable care and caution so as not to run into or strike persons lawfully present on said Austin Avenue, including plaintiff. In her answer to paragraph three of the complaint the defendant denied she owed such a duty and averred that she was under a duty to operate her vehicle as a reasonably prudent person would operate a vehicle under the same or similar circumstances. In paragraph four of the complaint it was alleged that at the time of the occurrence plaintiff was in the exercise of due care and caution. This was denied in defendant's answer.

Paragraph five of the plaintiff's complaint alleged that while plaintiff was walking the "defendant, disregarding her duty aforesaid, negligently drove her automobile as hereafter specified, so that as a direct and proximate result thereof, it ran violently against and struck plaintiff, thereby knocking plaintiff down to and upon, and dragging him along said avenue, and greatly injuring plaintiff as hereinafter alleged." The answer merely recited that the defendant "denies every allegation of paragraph ...


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