APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Lewis Hall, by his father and next friend, brought this action against Frank Randell, asking $100,000 in damages for personal injuries sustained when he was allegedly struck by Randell's auto. After both parties had presented their cases the trial court directed a verdict for the plaintiff on the issue of liability. The jury awarded him $13,000 in damages, upon which the court entered judgment. Randell has appealed from the judgment and from the denial of his post-trial motion.
Two issues are dispositive of the appeal: whether the court erred in directing a verdict in favor of the plaintiff and whether it erred by refusing to direct a verdict for the defendant at the close of the plaintiff's case.
The accident occurred on South State Street, Chicago, between the 39th and 41st Street intersections, at approximately 8:15 A.M. The area was a school zone which had a 20-mile per hour speed limit at that time of day. Lewis Hall, 8 years old, and his brother Calvin, 11, left their home in the 4000 block of South Federal Street, walked to State Street and crossed to a grocery store on the east side of State. After making a purchase, the boys recrossed State, traversing it at a point near the middle of the block. In that block, there are four traffic lanes. A raised concrete divider, approximately 5 feet wide, separates northbound and southbound traffic. Lewis held his brother's hand as they crossed the northbound lanes to this divider.
Meanwhile, Randell and three co-workers were driving home from their place of work in Randell's car. Randell testified that they were not conversing and the radio was not on. He drove east on 39th Street, paused at its intersection with State for a traffic light, turned right when the light changed and headed south on State. As he completed his turn he swung his car into the lane adjacent to the divider and proceeded at approximately 15 miles per hour, knowing from experience that this was a school zone frequented by children at that hour of the morning. He said lighting conditions were adequate and the weather not inclement except for gusts of wind, but the gusts were not strong enough to sway his car.
Lewis testified that he and his brother stopped after reaching the safety island and stood there until he was struck on the left leg by the front of an oncoming car. He said he had seen the auto coming but did not remember hearing either a horn or the sound of brakes before being hit. His testimony was impeached by an earlier sworn statement, taken 2 months before trial, in which he said that he had not seen a car coming and that he had stepped off the divider.
Calvin, 16 years old at the time he testified, gave differing versions of the occurrence. His testimony was not only internally inconsistent but it varied from his brother's account. On direct examination he related that as he and Lewis stood on the island, he looked for traffic, saw none, and they then "stepped two inches" into the street. Then he saw four or five cars speeding toward them and leaped back onto the divider, but one of them hit his brother. Further along in Calvin's examination, the 2 inches became two or three steps. Then he disclosed that after stepping into the street he had dropped the bag containing the items they had just bought, and that after picking up the contents he noticed the oncoming cars. His final story was that he dropped the bag as they stood on the island and he alone stepped into the street to retrieve it, after which they both stepped off the safety island together. Asked where the several speeding cars had come from, he responded "slow down the lane." A question by the court drew a third response:
"The Court: Where did the car come from that hit him?
A. It must have been parked."
Finally, he returned to his first position that the car was speeding. He said the car was 30 feet away when he first noticed it, but later changed his estimate to 15 feet. After a leading question by counsel, he decided the car had come up onto the divider:
"Q. In fact, did that car come onto that concrete thing you were on?
A. Yes, it little, halfway."
Calvin also testified that there were no passengers in the car and that he heard neither horn nor brakes.
Randell testified that there were three boys standing on the divider, holding hands with one another. As he approached them he took his foot from the accelerator, lowering his speed from 15 to about 5 miles an hour. The front of his car had passed the youths when he heard a noise against the side of the auto. It sounded like a rock had been thrown against the rear door, and he stopped to ...