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Rogall v. Kischer

AUGUST 30, 1971.

STEVEN ROGALL, A MINOR, PLAINTIFF-APPELLEE,

v.

FRED KISCHER, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 20, 1971.

Plaintiff, eleven years old at the time, suffered severe brain injuries as a result of an accident which occurred near the corner of North and Ferndale Avenues in Elmhurst. A jury trial resulted in a $230,000 verdict. The jury, by special interrogatories, found defendant guilty of negligence, the proximate cause of the accident, and plaintiff not guilty of contributory negligence.

Defendant appeals, contending: (1) that plaintiff failed to establish a prima facie case and a directed verdict or a judgment n.o.v. should have been entered in his favor, and (2) that several errors occurred during the trial, any one of which necessitates a new trial.

The site of the accident is a T-shaped intersection at which Ferndale, a residential street, begins and extends northward from North Avenue, a heavily travelled, four-lane, east-west route which has a speed limit of 35 miles per hour. The intersection has no marked crosswalk and no stop lights. The accident occurred at approximately 7:00 P.M. on the evening of August 10, 1964. The weather was clear and visibility good; traffic was intermittent. Plaintiff, along with three other boys, ages 13 and 14, and a 2-year-old-girl, approached the intersection after leaving a small grocery store a few yards to the southeast. The boys had agreed to an evening football game but were going home first. When they reached a point near what would have been the southeast corner of the intersection had Ferndale extended on southward, the children divided into two groups. Two of the boys, David Sampson and Roger Barwis, walked west on the south side of North Avenue in order to cross at Shady Lane, another T-shaped intersection a short distance away. Plaintiff and Steve Barloga and Barloga's 2-year old niece, remained to cross at the intersection.

Defendant and his wife approached the intersection by turning east onto North Avenue from Route 83. The intersection of North and Route 83 is controlled by stop lights and is 1200 feet east of Ferndale. Defendant was driving a Karmann Ghia and was on his way to visit his hospitalized brother. He and his wife were not supposed to arrive at the hospital at any particular time. The Route 83 stop light being green, defendant did not stop prior to turning left onto North Avenue. As defendant approached the Ferndale intersection, his wife screamed and defendant saw plaintiff running across North Avenue from the south. The boy hit the right front side of defendant's automobile, and cracked the portion of its windshield which curved around to the right side of the car. The lower portion of the right front fender of the automobile was also slightly damaged. Plaintiff has no memory of the incident. At the time of the trial, Barloga was stated to be in military service and not available to testify.

The trial was lengthy and defendant asserts the occurrence of numerous errors.

For clarity, the remainder of the factual statement and the opinion shall be set forth in two sections, separately considering:

I. Motions for a directed verdict, judgment n.o.v. and the contention that the verdict was against the manifest weight of the evidence, and

II. Defendant's objections to certain events which occurred during the conduct of the trial.

I

Fred Kischer, Jr., defendant, testifying in his own behalf and under section 60 of the Civil Practice Act:

"My auto was in good operating condition at the time of the accident. I was operating the vehicle in third gear. At the time of the deposition I said I was unsure of what gear the automobile was in. When the boy hit my car I was travelling 20 miles per hour. The highest speed I obtained on North Avenue prior to impact was 20 to 24 miles per hour. At all times my automobile remained in the inside eastbound lane. There was another automobile travelling in the inside lane about 200 feet in front of my car. There was another automobile ahead of me in the outside lane and travelling about 20 miles per hour. In my deposition I said this automobile was about 40 feet in front of me but now I do not remember the distance it was ahead of me. A Thunderbird was approximately 150 feet behind me. I first saw the child when my wife screamed. My attention was called to the boy by my wife screaming. He was running to the north approximately 15 feet ahead of me and one foot past the center of the outside eastbound lane when I first saw him. I saw no other children around the intersection. I stopped my vehicle after he hit me in the inside lane. I was able to stop almost immediately — within 10 feet of the point of impact. When I applied the brakes I did not make an emergency stop. I just stopped. In my deposition I said I applied my brakes in an emergency fashion. During the deposition I placed my initials and mark on a photograph showing the point of impact to be at the center of the intersection."

Ruby Kischer, testifying for the defendant:

"I am the wife of the defendant. The automobile was travelling 20 miles per hour at the point of impact. In my deposition I said the vehicle was travelling 30 miles per hour. I don't know how far in front of our car the boy was when I first saw him, but he was in the middle of the outside lane. My husband did not sound the horn at the time of the occurrence. We stopped gradually. I was not talking to my husband at the time of the occurrence. In my deposition I said that I did not know whether I was ...


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