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Smith v. Stopher

JULY 20, 1970.

WESLEY GLEN SMITH, A MINOR, BY ROBERT W. SMITH, HIS NEXT FRIEND AND ROBERT W. SMITH, PLAINTIFFS-APPELLEES,

v.

RICHARD D. STOPHER, ADMINISTRATOR OF THE ESTATE OF CECIL K. STOPHER, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County, Third Judicial Circuit; the Hon. A.A. MATOESIAN, Judge, presiding. Judgment affirmed.

MORAN, P.J.

This two-count personal injury suit was filed in the Magistrate Division of the Circuit Court of Madison County by Robert W. Smith on behalf of Wesley Glenn Smith, a minor bicyclist, for personal injuries, and by Robert W. Smith, his father and next friend, for medical expenses against Richard D. Stopher, Administrator of the Estate of Cecil K. Stopher who died after the accident and before the trial. Defendant made appropriate motions for directed verdicts and for judgments notwithstanding the verdicts which were denied. Judgments were entered on verdicts of $2,500 for the minor bicyclist on Count I, and for $915.75 for his father on Count II for the minor's medical expenses. Defendant appeals.

The only questions on appeal are whether there was sufficient evidence of negligence on the part of the motorist and sufficient evidence of due care on the part of the bicyclist to create questions of fact for the jury.

The accident occurred between a bicycle being ridden by Wesley Glenn Smith, then ten years of age, and a camper type truck of defendant's intestate near the intersection of Olive and California Streets in Collinsville, Illinois. These streets intersect at right angles with Olive Street running north-south and California Street running east-west. The surrounding area is residential and recreational. The back yard of the Helen Rarick residence is in the area adjacent to the northwest corner of the intersection. Her driveway extends from California Street at a point 58 feet west of the west edge of Olive Street. West of the driveway along the north side of California Street is a thirty mile per hour speed sign. Both California and Olive Streets are 21 feet wide. Across from the Rarick residence on the northeast corner of the intersection is Fletcher Field, a fenced sports playground with a frontage on Olive Street of at least 300 feet. This field has a ground level lower than Olive Street so that the fence presents no obstruction to the view when approaching the intersection from any direction. The level of Olive Street, as it approaches California from the north, is slightly upward. The level of California Street, as it approaches Olive from the east, is more sharply upward. These streets intersect at the crest of the hill formed by these two inclines.

Since the motorist died before trial, the minor plaintiff was precluded from testifying to the facts of the occurrence under the Dead Man's Act (Ill Rev Stats 1965, c 51, § 2). Since there were no eyewitnesses to the actual collision, the case is based on circumstantial evidence.

Michael Motsinger, aged ten at the time of the accident and a schoolmate of the minor plaintiff, testified that on October 29 he was at Fletcher Field sitting on the sidelines watching a football game. He heard a woman on the corner holler and turned to look to his left over his shoulder and saw Wesley Smith falling from a bicycle while traveling in a westerly direction on the north edge of California Street. He indicated on a photograph and diagram of the intersection that Wesley fell at a spot approximately 30 to 35 feet west of Olive Street on the North side of California. At the same time he saw a truck, the back of which was six to ten feet in front of Wesley when he was falling. He did not see any impact between the truck and bicycle. After Wesley fell and got up, apparently unhurt, Mike turned around and continued to watch the football game. Shortly thereafter Mike's father arrived at the scene of the collision and Mike later learned that it was his bicycle Wesley had been riding. The front wheel of the bicycle had been turned around and jammed under the frame, but there was no permanent damage.

Richard D. Stopher, son and administrator of the estate of Cecil K. Stopher, called under section 60 of the Civil Practice Act, testified to a conversation he had with his father about the accident sometime in December, 1966, as follows:

Q. "Had your father ever told you it was the bicycle of the boy that made the mark?"

A. "Only by implication."

Q. "And how by implication, what was the nature of your conversation with him?"

A. "Well, we were just traveling along, we were talking about the accident and I asked him, inquired about it, and he showed me the corner where it happened, and I asked him where he had been hit, and he said in the back."

Q. "Okay."

A. "Then I investigated it later and I just assumed that's what he meant ...


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