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Perricone v. Dibartolo

SEPTEMBER 20, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM F. PATTERSON, Judge, presiding.


The plaintiff, Thomas Perricone, an eighth-grade grammar school student, 13 years and 10 months of age, brought this action for injuries which he sustained in a collision between his gasoline-powered minibike and the automobile of the defendant, Mrs. Connie DiBartolo. After his case had been presented to the jury, the trial judge directed a verdict for Mrs. DiBartolo on the basis that he was, as a matter of law, guilty of contributory negligence. In this appeal the plaintiff contends the following: the rule holding a minor who operates a motor vehicle to an adult standard of care does not apply if, before an accident, the driver of the second vehicle can see that a minor is operating the first vehicle; the culpability of a minor is an issue for the jury's determination, and conflicting evidence and inferences to be drawn from the evidence presented a jury question as to whether the plaintiff was contributorily negligent.

Perricone was engaged in a race between his minibike and one operated by Michael Brauder, on the south sidewalk of Sunnyside Avenue, in the Village of Norridge, about 5:00 P.M. in April 1969. The youths were racing in a westerly direction with Perricone on the street side of the sidewalk. Mrs. DiBartolo, a housewife, who lived on the south side of Sunnyside was returning from a shopping trip and was driving her automobile west on that street. As she made a left turn into her driveway, Perricone's minibike collided with her car. He was thrown from his bike and his right femur was fractured.

Perricone testified that he and Brauder had started racing up and down the block upon returning from school that afternoon. Many of the homes on the extra long block had driveways which crossed the sidewalk. His bike had a two and a half horsepower engine and a top speed of 25 miles an hour; it made a noise similar to an electric grass cutter. It had disc brakes and at top speed could be stopped in about 40 feet. Brauder's bike was larger, had a more powerful motor and made more noise. They were racing from the street on the east to Brauder's home which was the second house from the corner of the cross-street to the west. The DiBartolo house was next to Brauder's home — three doors from the corner.

During the race Perricone had been going 25 miles an hour but he said he turned down his throttle to half speed when he approached Brauder's home. He was looking to the left and straight ahead in order to avoid little children. Although he said it was still daylight and there were no cars parked along the curb, he did not see the DiBartolo car until it was in the driveway, three-quarters across the sidewalk and about five feet in front of him. The sidewalk was dry and he attempted to stop, but it was too late and he ran into the auto and flew to the ground.

Mrs. DiBartolo was called as a witness by the plaintiff pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 60). She said that when she made a left-hand turn onto Sunnyside she did not notice any minibikes. She drove west on Sunnyside and came to a stop before turning south into her driveway; she looked to the left but saw and heard nothing. As she entered the driveway she again looked to the east; except for a neighbor working on his lawn, she saw no one. She made another stop as she came to the sidewalk and looked to her left to see if any children were about, but she saw nobody on the walk. As her car moved forward onto the sidewalk she heard a noise she did not recognize; she stopped her car immediately and the collision occurred.

Michael Brauder, the other participant in the race, did not testify.

The emphasis of both parties in this appeal is upon the question of young Perricone's contributory negligence. Mrs. DiBartolo, however, makes the additional point that the directed verdict was proper because of the plaintiff's failure to present a prima facie case of her negligence.

Mrs. DiBartolo was charged with driving onto a sidewalk without stopping and failing to keep a proper lookout and to blow her horn. The plaintiff presented no direct evidence on the first three allegations of negligence. The only testimony about these allegations was that of the defendant herself which completely exonerated her of negligence. But because of Perricone's testimony that the motorbikes were racing on the sidewalk for almost a full block before the accident and because of the noise they made, an inference could be drawn that if Mrs. DiBartolo had looked to the left, as often as she said she did, she would have seen the bikes and if she had maintained a proper lookout she would have heard them. There was evidence as to the last allegation — failing to sound her horn or other warning device: Perricone testified that he did not hear a horn before he collided with the defendant's auto. Mrs. DiBartolo never said she sounded her horn and, of course, if she saw no one in sight there was no reason for her to do so; and if she had, it would be doubtful if Perricone would have heard it above the noise of the motors on his and Brauder's bikes. The evidence on the look-out and horn-blowing issues was sufficient to require their submission to the jury.

• 1, 2 In an action predicated on negligence, the plaintiff must plead and prove the exercise of due care for his own safety. Whether the evidence establishes his due care must be determined from the facts of each case. (Murad v. Witek (1964), 48 Ill. App.2d 137, 199 N.E.2d 809.) In Illinois law there is a presumption that a child between the ages of seven and fourteen is incapable of negligence. (Strasma v. Lemke (1969), 111 Ill. App.2d 377, 250 N.E.2d 305.) This presumption can be rebutted by showing that a child between these ages has the mental capacity and experience to act negligently. (Piechalak v. Liberty Trucking Co. (1965), 58 Ill. App.2d 289, 208 N.E.2d 379.) A child in this age bracket is not held to the same accountability as an adult; the question of his culpability is one of fact and must be left to the jury to determine, taking into consideration his age, capacity, intelligence and experience. (Dickeson v. Baltimore & O. Term. R.R. Co. (1969), 42 Ill.2d 103, 245 N.E.2d 762; Kronenberger v. Husky (1967), 38 Ill.2d 376, 231 N.E.2d 385.) If this case were limited to these legal principles, the jury should have been allowed to decide whether Perricone, who was two months from his fourteenth birthday, was contributorily negligent. However, our mechanical age has produced a noteworthy exception which the trial court applied to this case.

• 3 It has been held that when a minor is engaged in certain activities, such as the operation of a motor vehicle, the law does not permit him to be judged by any standard other than that expected of all others who engage in the same activities. In Betzold v. Erickson (1962), 35 Ill. App.2d 203, 182 N.E.2d 342, the court held the defendant, a 13-year-old boy who drove a pickup truck on a country road, to the standard of care required of licensed drivers. It approved the following language from Dellwo v. Pearson (1961), 259 Minn. 452, 107 N.W.2d 859, which involved the operation of a motor boat by a 12-year-old defendant:

"To give legal sanction to the operation of automobiles by teenagers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults. While minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience, and wisdom, it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others. A person observing children at play with toys, throwing balls, operating tricycles or velocipedes, or engaged in other childhood activities may anticipate conduct that does not reach an adult standard of care or prudence. However, one cannot know whether the operator of an approaching automobile, airplane, or powerboat is a minor or an adult, and usually cannot protect himself against youthful imprudence even if warned. Accordingly, we hold that in the operation of an automobile, airplane, or powerboat, a minor is to be held to the same standard of care as an adult."

In Dawson v. Hoffmann (1963), 43 Ill. App.2d 17, 192 N.E.2d 695, this court held that reversible error was committed by the trial court's instructing the jury that a 17-year-old defendant, who struck a pedestrian while driving an automobile, was not held to the same standard of care as an adult. The Appellate Court reasoned:

"Minors are entitled under the law to be judged by standards commensurate with their age, experience and wisdom when engaged in activities appropriate to their age, experience and wisdom, but it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standard of care and conduct than that expected of all others. The law will not ...

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