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Pedersen v. Kinsley

JANUARY 10, 1975.

PSYCHE L. PEDERSEN, PLAINTIFF-APPELLEE,

v.

SHARON KINSLEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MINOR K. WILSON, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 6, 1975.

Plaintiff, a guest in defendant's automobile, was injured when the car swerved off the road and struck a lamppost. She sued defendant for damages arising from her injuries and alleged that defendant was guilty of willful and wanton misconduct. After the trial judge denied defendant's motions for a directed verdict, both at the close of plaintiff's case and after all the evidence was presented, the jury rendered a verdict for plaintiff in the amount of $15,000. The jury also answered "yes" to the following special interrogatory: "Was the defendant, Sharon Kinsley, guilty of willful and wanton conduct which was a proximate cause of the occurrence in question?" After the trial judge overruled defendant's post-trial motion for judgment notwithstanding the verdict, he entered judgment on the jury verdict.

On appeal defendant contends the court erred in denying her motions for a directed verdict both at the close of plaintiff's case and at the close of all the evidence.

The pertinent evidence adduced at trial was as follows: James Leahy, a Chicago police officer, testified as a witness for plaintiff. On July 16, 1970, he investigated an automobile accident at 5114 North Kenneth Avenue. He interviewed defendant at Northwest Hospital shortly after the accident and was told by her that "she turned around to look back at her child to see if it was all right, and the next thing, she turned around into a post. She ran off the roadway." When asked if she said anything to him about any animal on the road, Leahy responded "No." It was a clear day and the accident occurred at 1:10 P.M. while there was daylight. The car involved was a two-door Chevrolet sedan.

Plaintiff, testifying in her own behalf, stated that she was 21 years old at the time of the accident. Defendant lived across the street, and they were friends. Defendant was taking her child, Laurie Kinsley, age 5, to the pediatrician and asked her to accompany them for the ride. Returning from the pediatrician's office, they were proceeding west on Foster Avenue. Defendant made a left turn onto Kenneth Avenue and proceeded south. Kenneth is a one-way street going south, and the accident occurred about two-thirds of the way down the block. At the time plaintiff was sitting in the right-hand passenger seat next to defendant who was driving. Laurie was standing up in the back seat of the car.

As they were driving along the street, a little black animal, a dog or cat, ran out into the middle of the street. The animal was about 50 feet in front of the car when she first observed it. It was running from east to west. At the same time she saw the animal, Laurie also saw it and started screaming, "You're going to hit it," or something to that effect. When Laurie started screaming, the car swerved to the right. Plaintiff looked at defendant who was both looking at her daughter and turning the car. Plaintiff looked ahead and could see they were going toward a lamppost. Plaintiff then shouted, "Stop, look out!" approximately three times. Defendant did not apply the brakes, and the car never slowed down. The car was going about 27 miles per hour when she first saw the animal. While plaintiff was shouting these warnings, defendant kept turning the steering wheel, and the car kept going to the right. Defendant was looking to the right side of her shoulder at her daughter. Finally defendant looked up, screamed and threw her hands up off the wheel. Then the right side of the car's headlight hit the lamppost. Plaintiff was thrown forward, her jaw hit the dashboard, her head broke the windshield, and she was thrown back on her shoulder. The car traveled about 10 feet from the time she first screamed until she hit the lamppost.

Defendant was one or two feet from the curb when she took her hands off the steering wheel. While the car had been swerving to the right, defendant was looking at her child in the back seat of the car.

On cross-examination it was brought out that plaintiff only estimated the car's speed at 27 miles per hour. Defendant looked back at her daughter because of the child's scream. Plaintiff never looked at Laurie. On a prior deposition plaintiff stated that when she heard the child scream, she also looked back at Laurie. It took plaintiff a matter of seconds to yell the warnings. Also in a prior statement plaintiff had said "that this was an accident, Sharon turned to avoid the dog, and the child screamed."

On redirect examination plaintiff related a conversation she had with defendant a few days after the accident. Defendant admitted it was all her fault because everything happened so fast; she didn't use her brakes nor watch where she was going. She also admitted turning around in her seat while keeping her hand going around the steering wheel.

At this point the court denied defendant's motion for a directed verdict. Defendant then testified in her own behalf. Her daughter was 5 years old at the time of the accident. The auto was a two-door 1967 Chevrolet Impala. The weather was fine. As she was driving down Kenneth Avenue, about half-way down the block, her child started screaming, "a doggie, a doggie!" She glanced to the right and told her to calm down. This took a fraction of a second. When she looked, a dog had come right in front of the car. She swerved to the right to avoid hitting the dog, lost control of the car, and the car's right side hit the post. All three of them saw the animal at the same time. Everything occurred in a flash, a matter of seconds. From where she saw the dog and heard the child scream to the pole was approximately 15 feet. Defendant denied looking over her right shoulder for 2 or 3 seconds while telling her daughter to calm down. Plaintiff never warned her. Defendant denied telling plaintiff that she shouldn't have looked back at her child for as long as she did when she turned to the right.

On cross-examination defendant could not remember what she related to Officer Leahy. She was traveling 20 to 25 miles per hour. At first the animal was slowly walking out into the street. Defendant did admit that she did not slow down. She denied that her daughter first screamed and then she lost control of the car but was impeached by a prior statement wherein she stated, "My little girl started to scream, and I lost control of the car." Defendant does not know what happened to the dog, nor does she remember if she threw up her hands. Defendant did remember turning the wheel. Defendant was also impeached by a prior statement she denied making wherein she admitted, "I do know that Psyche [plaintiff] hollered, `Look out, be careful.'"

OPINION

Defendant contends that the court erred in denying her motions for a directed verdict both at the close of plaintiff's case and at the close of all the evidence. She argues that since the occurrence took place in such a short time span, she could not have acted with a conscious indifference to consequences. Rather, there was merely a ...


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