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Sellers v. Hendrickson

OPINION FILED MARCH 18, 1977.

KEVIN LEE SELLERS ET AL., MINORS, BY DELMAR WAYNE SELLERS, THEIR FATHER AND NEXT FRIEND, PLAINTIFFS-APPELLANTS,

v.

PAULA D. HENDRICKSON, FORMERLY PAULA D. SIMMONS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. LEONARD J. HOFFMAN, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

This appeal is by plaintiff-appellant, Ernest Sellers, from a judgment of the circuit court of LaSalle County entered upon a verdict finding in favor of defendant, Paula Hendrickson. There is also a cross-appeal by defendant Hendrickson from a judgment n.o.v. entered against defendant and in favor of plaintiff, Kevin Sellers.

This action was brought by Delmar Wayne Sellers, as father and next friend of Kevin Lee Sellers and Ernest Sellers, to recover damages for personal injuries allegedly caused by the negligence of defendant Hendrickson in driving her automobile. The jury found in favor of defendant Hendrickson and answered special interrogatories finding defendant not negligent as to each of the plaintiffs and finding plaintiff Ernest Sellers guilty of contributory negligence. The trial court entered an order finding defendant was guilty of negligence as a matter of law. The court vacated the jury's answers to the interrogatories finding defendant not negligent as to each of the plaintiffs on the grounds the answers were against the manifest weight of the evidence. The court did not disturb the special interrogatory as to the contributory negligence of Ernest Sellers. Kevin Sellers was a minor under seven years of age and therefore legally incapable of contributory negligence. The verdict against him and in favor of the defendant was vacated and judgment was entered for the plaintiff Kevin Sellers and a trial ordered on the question of damages alone. The court found the jury's answer to the interrogatory finding Ernest Sellers guilty of contributory negligence and the general verdict in favor of defendant and against plaintiff Ernest Sellers, to be supported by the evidence and affirmed that judgment.

The accident in question occurred in Streator, Illinois on April 1, 1968. Defendant was driving south upon a two-lane one-way south street at a speed of between 20 and 25 miles per hour. The street was a State route and the speed limit was 30 miles per hour. She testified she saw neither of the plaintiffs prior to the accident. There was traffic to the right of her as she traveled in the left lane and the only obstruction to her view was the other traffic to the right of her. The accident occurred about 30 feet north of an intersection. Plaintiff heard a thud, stopped her automobile, got out and found the two plaintiffs lying in front of the car. Just prior to the accident she was not looking at anything specific but merely looking where she was driving. She did not brake her vehicle, turn or utilize any preventive maneuver prior to the impact. It was the center of her car which came in contact with the two plaintiffs. The area in which the accident occurred was residential and in the general location of two schools. Defendant was familiar with the area and was aware of the fact it was residential and heavily traveled by students going to and from their respective schools. The accident occurred at approximately 3:15 p.m.

Defendant testified that just prior to the accident there were other cars in the left lane of Bloomington Street in front of her car and other cars in the right lane to the side of her but she did not know exactly where. She did not recall any cars neck and neck with her on the street nor any specific car in the left lane ahead of her. The plaintiffs were on the west side of the street proceeding from the west side to the east side and therefore coming from defendant's right to her left. Plaintiff Ernest Sellers was running across the street at the time of the accident. He admitted not looking before running across the street. The accident occurred 25 to 35 feet north of the next intersection to the south and therefore not in any cross-walk area.

Matthew Sellers, an older brother of the plaintiffs who was an eyewitness to the occurrence in question, testified at a pretrial deposition that he and his two brothers, the plaintiffs, were on the west side of the street when a semi went by and that the plaintiffs took off running and got nailed. He further testified at the deposition that he did not see the car involved in the accident because of the semi in the west lane and the car was just about right behind it and he did not see the car until it hit his brothers.

Elmer Kruger testified that on April 1, 1968, he was on his way home from work driving his car in a southerly direction near the intersection of Grant Street and Bloomington Street in Streator. As he approached the intersection of Grant Street he was traveling in the right hand lane and he saw Ernest and Kevin Sellers standing on the curb waiting to cross Bloomington Street from west to east. There were other children on the right hand side of the sidewalk. The two plaintiffs stepped off the curb about a half a block ahead of him. They were about 25 to 50 feet north of the intersection. When he saw the children running across the street in a northeasterly direction he let up on the accelerator in order to give them plenty of time to get across. He stated by running he meant they were moving just faster than a walk. He was in the right hand lane and there were no other vehicles in the right hand lane ahead of him between himself and the children. He saw the car driven by defendant which was traveling south 25 to 50 feet ahead of him on the left hand side. There were some cars ahead of her but he didn't recall how close they were and there were no cars in the right hand lane that were parallel to her car. He did not see any car in the right hand lane ahead of defendant. The children were close together when they were hit by the front of defendant's car. He testified he was aware the collision would occur when the children were directly in front of him after they had started across the street. The defendant's car was about 8 or 10 feet from the left curb just prior to the accident. There was no obstruction to his visibility in the right hand lane and he didn't see any vehicles other than defendant's in or about the scene. The actual impact occurred in the center of the eastern most south bound lane at about 25 to 35 feet north of the intersection.

Setting aside for the moment the question of the admissibility of certain evidence, we shall first deal with the issue whether the general verdicts of the jury in favor of defendant Paula Hendrickson and against the plaintiff Ernest Sellers and plaintiff Kevin Sellers were supported by the evidence.

As indicated earlier, the jury found in favor of defendant Hendrickson with respect to the claims of each plaintiff. Thereafter pursuant to post-trial motion the court found the defendant Hendrickson guilty of negligence as a matter of law. Consistent with this determination the trial court granted Kevin Sellers a new trial on the issue of damages only since because of his age he could not be guilty of contributory negligence. The court agreed with the jury's finding on the special interrogatory that Ernest was guilty of contributory negligence and consequently judgment in favor of the defendant was continued even though for different reasons. The initial appeal is by Ernest Sellers in which he insists the trial court was correct in finding the defendant guilty of negligence as a matter of law but in error in holding the jury's verdict finding him guilty of contributory negligence was supported by sufficient evidence. The cross-appeal by defendant Hendrickson raises the primary issue as to the propriety of the court's order finding Hendrickson guilty of negligence as a matter of law and a subsidiary issue whether in any event a new trial should have been limited to the issue of damages alone.

The first issue which we believe should be resolved in order to effectively consider the case as a whole is the question of whether the court erred in finding the defendant Hendrickson was guilty of negligence as a matter of law. The standard applicable to the trial court's action is that as enunciated in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. We do not believe it necessary to restate the Pedrick rule nor do we believe it necessary to restate the facts which have earlier been set forth in this opinion at some length.

• 1 It is our conclusion that whether defendant Hendrickson exercised her duty to keep a proper lookout was a disputed question of fact which was properly submitted to the jury for resolution. The testimony of the defendant, that of the independent witness Kruger, as well as the physical circumstances existing at and prior to the incident, are subject to conflicting inferences, particularly when they are assessed with regard to the conduct of the plaintiffs themselves. Under these circumstances we believe the court erred in declaring the defendant to be guilty of negligence as a matter of law. We likewise believe that whether Ernest Sellers was guilty of contributory negligence was also a matter peculiarly within the province of the jury to resolve and we believe it would be improper to hold that he was or was not in the exercise of due care for his own safety as a matter of law.

Having held the trial court erred in its determination the defendant was guilty of negligence as a matter of law, further questions arise concerning the propriety of the original jury verdicts. More particularly, these questions are raised by the plaintiffs and their assertions that they were prejudicially deprived of a fair trial by erroneous rulings on evidence by the trial court.

The next issue is whether the trial court erred in allowing defendant to impeach her own witness, Matthew Sellers, the brother of the plaintiffs by proof of prior inconsistent statements made by ...


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