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Cusick v. Clark

OPINION FILED FEBRUARY 18, 1977.

KELLY CUSICK, A MINOR, BY KENNETH CUSICK, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

MELANIE B. CLARK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. WILLIAM P. DENNY, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Plaintiff Kelly Cusick, by her father and next friend, Kenneth Cusick, appeals from a judgment of the Circuit Court of La Salle County in favor of defendant Melanie B. Clark, following a jury trial. Plaintiff argues, essentially, that the trial court erred in refusing to direct a verdict for plaintiff and in refusing to grant judgment notwithstanding the verdict, pursuant to motion filed by the plaintiff at the close of the evidence.

At the jury trial in the Circuit Court of La Salle County, the jury had returned a general verdict in favor of defendant and as against plaintiff. The jury also, in response to a special interrogatory, found that defendant was not guilty of negligence that proximately caused plaintiff's injury.

From the record it appears that on May 13, 1974, at approximately 7:20 p.m., the minor, Kelly Cusick, three years of age, was standing on the southeast corner of the intersection of Guion and Superior Streets in Ottawa, Illinois. The intersection was marked with crosswalks, was posted with a stop sign at each corner, and had no obstruction to vision at any corner. The intersection was also near an elementary school and playground, which the children were known to frequent. It was still daylight at the time in question.

It appears that Phyllis Palmer (not a party to the action) was driving an automobile north on Guion Street, and stopped at the south side of the intersection of Guion and Superior Streets near the crosswalk. The Palmer automobile was a stationwagon, which was 18 feet in length and 55 inches tall. While Phyllis Palmer was stopped at the intersection, she observed the child, who was approximately three feet tall, standing on the southeast corner of the intersection near the curb. Palmer watched the Cusick child for a few moments and at this time the vehicle driven by defendant Melanie B. Clark, which was proceeding south on Guion Street, was coming to a stop at the north side of the intersection. There were no vehicles proceeding through the intersection from the east or west on Superior Street.

Palmer then drove her car across the crosswalk and through the intersection, which was 47 feet in width. Soon after Palmer began to cross the intersection, defendant Melanie B. Clark, who had stopped at the north crosswalk of the intersection, proceeded through the intersection, going the opposite direction of the Palmer automobile. The Clark car and the Palmer car passed each other midway through the intersection. As the vehicles passed, the defendant Clark was looking ahead of her and saw nothing other than the Palmer vehicle and the pavement and crosswalk ahead of her. Defendant Clark was proceeding through the intersection at a speed of 5 to 10 miles per hour. As the Clark automobile was passing through the crosswalk at the south side of the intersection, defendant Clark heard a thud on the left rear of her car, at a time when her car was on the east side of Guion Street, with the rear of her car in the crosswalk. Immediately thereafter, the plaintiff child was in a sitting position within the crosswalk. Both the defendant and Palmer then stopped, and defendant apparently removed the plaintiff to the side of the road. Testimony indicated that while the defendant's car was dusty or dirty, no marks or damage could be found on the vehicle. Testimony of defendant's father indicated that there was a small handprint on the rear fender of the defendant's vehicle, above and to the center of the rear wheel. Defendant Clark testified that she did not see the plaintiff prior to the collision, although she looked in all directions.

After hearing the evidence, the jury returned a verdict finding for the defendant and against the plaintiff, as we have noted, and also found in answer to a special interrogatory that the defendant was not guilty of negligence which proximately caused plaintiff's injury. The trial court entered judgment on the jury's verdict, and denied the plaintiff's post-trial motion which sought a new trial or judgment notwithstanding the verdict. The trial judge communicated by letter to the parties at the time of his decision and stated that:

"Here the defendant did look, and whether she should have seen was clearly an issue of fact to be determined by the jury. Here the evidence most favorable to the defendant indicates that she approached the intersection, stopped at the stop sign, looked, proceeded into the intersection at a speed of from 5 to 10 miles per hour, proceeded through the intersection at the same speed, and while passing through the crosswalk had impact occur to the left rear side of her vehicle. That evidence does not so overwhelmingly favor the plaintiff that the jury's verdict cannot stand. In addition, I am unable to say that the evidence so clearly preponderates in favor of the plaintiff that a new trial must be ordered. I feel that the particular case with its conflicting evidence was unquestionably a case for the jury to decide."

• 1 On appeal to this court, plaintiff argues that the trial court erred in refusing to grant judgment notwithstanding the verdict to plaintiff. Defendant asserts, however, that plaintiff is in this court conclusively bound by the jury's answer to the special interrogatory, unobjected to in the trial court, and that defendant was found by the jury not to be negligent so as to cause plaintiff's injury. As this court stated in Klavine v. Hair (3d Dist. 1975), 29 Ill. App.3d 483, 486-87, 331 N.E.2d 355:

"Normally a party is bound conclusively by the answer to a special interrogatory on a material issue unless he moves to set it aside or attacks it in his post-trial motion, neither of which was done by plaintiff here. [Citations.] However, any alleged error in the trial which bears a rational relationship to the considerations from which the jury determined a special finding must be considered on review. [Citation.] As otherwise expressed, a party is bound by a special finding unless he specifically attacks it or unless he assigns error in some procedure which necessarily affected the substance of the special finding."

Defendant contends that plaintiff in this appeal, not having attacked the jury's special finding in the trial court, and not asserting on this appeal any procedural errors affecting the substance of the jury's finding, is now conclusively bound by the jury's finding that the defendant was not negligent. While we do not discount the argument of defendant in coming to our conclusion, we note that there is recent authority indicating that, in a proper case, the doctrine referred to does not limit the power of a reviewing court to consider the merits of an appeal (Wozniak v. Segal (1974), 56 Ill.2d 457, 308 N.E.2d 611; Fopay v. Noveroske (5th Dist. 1975), 31 Ill. App.3d 182, 334 N.E.2d 79). On that principle, we believe that in the present case we should consider the substance of plaintiff's contention.

What plaintiff argues, in substance, is that the proof in this case presented no factual questions for the jury's consideration on the issue of liability, and that therefore judgment notwithstanding the verdict should have been entered. In this analysis, we must consider the rule in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 494, 510, 229 N.E.2d 504, in which the supreme court specifically determined that "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

• 2 To review fundamental considerations, in order to recover for personal injuries in a negligence action, a plaintiff must show (1) a duty owed to the plaintiff, (2) a breach of that duty, which (3) proximately causes (4) a resulting compensable injury. (Rios v. Sifuentes (1st Dist. 1976), 38 Ill. App.3d 128, 347 N.E.2d 337.) We also observed that it is clear that the plaintiff in this case, a three-year-old child, is conclusively presumed not to be responsible for her acts and cannot be charged with contributory negligence. Duffy v. Cortesi (1954), 2 Ill.2d 511, 119 N.E.2d 241; Rios v. Sifuentes (1st Dist. 1976), 38 Ill. App.3d 128, 347 N.E.2d 337.

We also take note of the provision of the Illinois Vehicle Code in section 11-1002(c) (Ill. Rev. Stat. 1973, ch. 95 1/2, par. ...


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