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Wall v. Mcgavock

MARCH 9, 1971.

JOHN WALL, A MINOR, BY KENNETH WALL, HIS FATHER AND NEXT FRIEND, ET AL., PLAINTIFFS-APPELLANTS,

v.

LOIS MCGAVOCK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSON, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The court directed a verdict for the defendant at the close of plaintiffs case in an injury suit brought on behalf of a three year old child charging the defendant with negligence.

In this appeal on behalf of the minor, it is contended that there was sufficient evidence of the defendant's negligence to have gone to the jury. The argument is based upon the theory that a "babysitter" owes a duty to a child entrusted to her care to provide reasonable supervision for forseeable injuries.

In October of 1965, Mrs. Wall engaged her friend and neighbor Mrs. McGavock to care for John Wall in the McGavock home while Mrs. Wall was away at her work. The agreed payment for the defendant's services was $2.00 per day. The only testimony as to the charged injury to the child's eye was adduced from the adverse examination of the defendant under Section 60 of the Civil Practice Act. Mrs. McGavock testified that on April 4th, 1966, John Wall was in her custody under the usual arrangement and was playing with the three McGavock boys who were 2, 3 and 4 years old respectively. The children were playing in the "T.V." room with "Tinker Toys" which included sticks of various lengths. The set had been purchased by Mrs. McGavock and was in a closet accessible to the children. The boys were using the "Tinker Toys" with her knowledge. She checked on the boys from time to time. The longest interval would have been possibly twenty minutes, but they would come to her also in the interval. She said she knew that the boys "rough-housed" occasionally and she had, on previous occasions, cautioned her 4 year old, who was the biggest of the children, not to be so rough with the younger boys. About 3:30 in the afternoon, while Mrs. McGavock was in the breezeway hanging wash, she testified that she heard John Wall cry out, met him as he came toward the kitchen, and observed that his left eye was severely cut and was bleeding. She saw blood on the floor in the T.V. room which she assumed marked the place of the accident and also found a six to eight inch Tinker Toy stick there.

Mrs. McGavock further testified that the minor plaintiff told her, shortly after the accident, that he fell on a Tinker Toy. She was then asked whether she had talked to the boy about the accident in the next day or so:

"Q All right; and did you inquire of him again how the accident happened?

A Yes.

Q Did he indicate to you how it happened?

A Yes.

Q And did that indicate any rough housing?

A Some, yes.

Q And rough housing on the part of your son, Jeff?

A Between Jeff and Johnnie, yes.

Q As a matter of fact, they were fighting over a tinker toy when the ...


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