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Diederich v. Walters

OPINION FILED OCTOBER 1, 1976.

ANTHONY DIEDERICH ADM'R, APPELLEE,

v.

WILLIAM W. WALTERS, APPELLANT.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

This is a wrongful death action brought in the circuit court of Du Page County by plaintiff, Anthony Diederich, as administrator of the estate of Richard John Diederich, against the defendant, William W. Walters, who was the driver of an automobile which struck and killed the 13-year-old decedent as he was walking along a highway. The complaint alleged that the defendant had operated the motor vehicle in excess of the posted speed limit, failed to maintain a proper lookout for pedestrians lawfully upon the highway, and failed to keep his automobile under control at all times. The jury answered a special interrogatory finding plaintiff's decedent guilty of contributory negligence and rendered a verdict in favor of defendant. The appellate court reversed and remanded for a new trial on the grounds that the trial court had erred (1) in not giving plaintiff's tendered instruction advising the jury as to the rebuttable presumption that a child 7 to 14 years of age is incapable of contributory negligence; and (2) in permitting a police officer who investigated the accident to state his opinion as to the speed of defendant's automobile based upon the length of skid marks. (Diederich v. Walters (1975), 31 Ill. App.3d 594.) We granted leave to appeal.

The accident occurred on September 18, 1971, at approximately 9:45 p.m. on Clarendon Hills Road between 67th and 68th Streets in Du Page County. Clarendon Hills Road is a two-lane highway which runs in a north-south direction. The decedent was walking south on the west side of the highway when he was struck from behind by the defendant's car, which was also proceeding south in the southbound lane.

Two friends of the decedent, Vicki Pusateri and Edward Goff, ages 14 and 15 respectively at the time of the accident, testified that they were walking with the decedent on the way to a high school dance when the accident occurred. They testified that there were no sidewalks along Clarendon Hills Road and that the two of them were walking side by side on the paved portion of the highway with the decedent walking behind them. Whenever they heard traffic approaching from the rear, they would step off the pavement onto the gravel shoulder until the traffic passed. It was dark, and the roadway was not illuminated in the vicinity of the accident. The decedent was wearing dark clothing. No other pedestrians were in the area at the time.

The two witnesses testified that when they heard the "loud noise" of defendant's car approaching, they stepped off the pavement and then heard the impact of the car striking the decedent behind them. The car proceeded past them and came to a stop approximately 200 feet to the south. Vicki Pusateri testified that on the basis of her experience riding in cars driven by her parents and boy friends, she thought the defendant's car was traveling at least 40 miles per hour as it passed her. On the basis of similar criteria, Edward Goff testified that he was of the opinion that the car was going about 50 miles per hour as it went past. Both witnesses stated that they never heard a horn before the impact occurred.

A passenger in defendant's car testified that the defendant's car was proceeding no faster than 30 or 35 miles per hour at the time of the accident and that he never saw the decedent before the impact. He further testified that the car did not leave the pavement either before or after the accident.

The police officer who investigated the accident was called as a witness by the plaintiff. He testified on direct examination that he found skid marks which measured 63 feet on the driver's side and 61 feet 6 inches on the passenger side. The defendant's car was found on the highway approximately 100 feet south of the point at which the skid marks ended, and the decedent's body was found on the pavement approximately 11 feet behind the car. The car had sustained damage to its right, front side. The posted speed limit at that location was 35 miles per hour. On cross-examination, the officer was permitted to testify over objection by the plaintiff as to his use of a nomograph, which is a chart used to determine approximately how fast a vehicle was traveling based upon the length of the skid marks and the coefficient of friction of the particular road surface. He testified that the nomograph indicated an approximate speed of 34 miles per hour. He also stated that his investigation of the shoulder of the roadway gave no indication that the defendant's car had ever left the paved portion of the highway. On redirect examination, the officer testified that the nomograph only gives an approximate minimum speed based on the length of skid marks and that the defendant's car could have been traveling faster than 34 miles per hour.

The principal question raised on this appeal is whether the trial court erred in refusing to give plaintiff's tendered instruction No. 14 advising the jury as to the rebuttable presumption in Illinois that a child of 7 to 14 years of age is incapable of negligent conduct. Plaintiff's tendered instruction No. 14 stated: "Since the decedent, Richard Diederich, was under the age of 14 at the time of the occurrence, there is a presumption that he was free from contributory negligence." The trial court rejected the tendered instruction and gave instead Illinois Pattern Jury Instruction (IPI) Civil No. 10.05 in the following language: "A minor is not held to the same standard of conduct as an adult. When I use the words `ordinary care' with respect to the decedent, I mean that degree of care which a reasonably careful minor of the age, mental capacity and experience of the decedent would use under circumstances similar to those shown by the evidence. The law does not say how such a minor would act under those circumstances. That is for you to decide." The jury was also instructed in the language of IPI Civil No. 10.06 that: "The rule I have just stated also applies when a minor is charged with having violated a statute." The jury was further instructed:

"There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided:

`(a) Any person walking along and upon improved highways shall keep on the left of the paved portion or on the left shoulder thereof and upon meeting a vehicle while walking on such paved portion shall step off to the left.'

If you decide that the plaintiff's decedent violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the plaintiff's decedent was contributorily negligent before and at the time of the occurrence."

In reversing and remanding for a new trial, the appellate court concluded that IPI Civil No. 10.05 did not instruct the jury as to the presumption that a minor under the age of 14 years is free from contributory negligence and that failure to so instruct the jury constituted reversible error. While we agree with the appellate court that IPI Civil No. 10.05 did not instruct the jury as to the presumption in question, we do not concur with that court's determination that it was necessary to do so on the facts of this case.

The determination of whether a jury should be instructed as to the existence of a presumption must be made by the trial court in the context of the facts and circumstances of each case with reference to the applicable law, the evidence, other instructions and the particular nature and procedural effect of the presumption itself. With regard to the procedural effect of presumptions, most jurisdictions in this country follow the rule that a rebuttable presumption may create a prima facie case as to the particular issue in question and thus has the practical effect of requiring the party against whom it operates to come forward with evidence to meet the presumption. However, once evidence opposing the presumption comes into the case, the presumption ceases to operate, and the issue is determined on the basis of the evidence adduced at trial as if no presumption had ever existed. (See 1 Jones, Evidence sec. 3:8 (6th ed. 1972).) The burden of proof thus does not shift but remains with the party who initially had the benefit of the presumption. Consistent with this view, Dean Wigmore states in his treatise on evidence that "the peculiar effect of a presumption `of law' (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge's requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury's hands free from any rule * * *." (9 Wigmore, Evidence sec. 2491, at 289 (3d ed. 1940).) As stated in Jones on Evidence, "since the presumption loses its force when evidence is introduced against it, it would naturally follow that no mention of the presumption would be made in the instructions to the jury, and the issue is submitted without any knowledge on the part of the jury of the special legal significance of the basic facts from which the presumption originally arose." 1 Jones, Evidence sec. 3:9, at 146 (6th ed. 1972).

Under the other view, which is sometimes referred to as the Pennsylvania Rule, the presumption continues in effect even in the face of rebutting evidence. The party against whom the presumption operates has the burden of proof of overcoming the presumption, and in this respect the burden of proof as to that issue shifts to the opponent. The jury usually should be instructed as to the existence of the presumption, since it would normally be the jury's function to determine whether the opponent had produced sufficient evidence to rebut the presumption. See cases ...


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