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Corneiller v. School Dist. 152 1/2





APPEAL from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding.


Suit was brought on behalf of John Corneiller (plaintiff), a minor, seeking damages from School District 152 1/2 (defendant) and Gladys Vandenbil (Vandenbil) for injuries sustained when plaintiff's right foot came into contact with a school bus owned by defendant and driven by Vandenbil. During trial, plaintiff dismissed Vandenbil as co-defendant. The jury returned a verdict in favor of defendant. We allowed defendant leave to appeal from an order of the trial court granting plaintiff judgment notwithstanding the verdict and ordering a new trial on the issue of damages only. Ill. Rev. Stat. 1977, ch. 110A, par. 306.

Defendant contends the trial court erred in granting judgment notwithstanding the verdict, urging that under the standard established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the evidence viewed in the light most favorable to defendant supports the verdict of the jury. Plaintiff claims the evidence overwhelmingly favors a finding of negligence so that no contrary verdict can possibly stand. Alternatively, plaintiff contends this court should remand the cause for a new trial on all issues or should remand the cause for a ruling by the trial court as to whether this cause should be retried on all issues.

The incident occurred at 3:30 p.m. on March 7, 1972, outside Woodland School, located at the southwest corner of 169th Street and Western Avenue in Hazel Crest, Illinois. 169th Street runs east and west. Western Avenue runs north and south. Both roads are 20 to 24 feet wide. The school is set back a short distance from the corner. A grassy stretch extends south from 169th Street along the west edge of Western Avenue. A faculty parking lot borders the southern side of 169th Street. The grassy area begins approximately 4 feet south of the southwest corner of the intersection. A curbless sidewalk begins west of two crosswalk lines painted across Western Avenue. This walk becomes part of the pavement of the faculty parking lot. There is a 2- to 3-foot-wide drainage ditch between the west edge of Western Avenue and the grassy area. An east-west sidewalk 80 feet south of the intersection leads from a school entrance across the grass and drainage ditch. On the day in question the weather was clear. The ground was somewhat muddy from the spring thaw.

Vandenbil, called by plaintiff as an adverse witness (Ill. Rev. Stat. 1977, ch. 110, par. 60), testified she heard the school bell ring as she drove the bus south on Western Avenue and entered 169th Street. She stopped the bus in the intersection because she noticed plaintiff and other small boys playing at a bicycle rack near the school door. She also noticed an automobile parked on Western Avenue directly in front of the east-west sidewalk located 80 feet south of the intersection. Normally she parked the bus in front of this sidewalk, allowing the children to board without stepping through the grass and drainage ditch. She paused about 30 seconds in the intersection and then began moving the bus forward again, intending to maneuver toward the west edge of Western Avenue and to stop north of the parked car until it left and cleared the boarding point. The last time she saw plaintiff he was still at the bicycle rack, "playing around" and running east "a little bit."

She looked away from the children because she needed to look ahead during the maneuver. The right front door of the bus was within the two painted crosswalk lines when she heard a scream. She was driving under 10 miles per hour. She immediately stopped the bus, which traveled an additional 5 feet. Upon alighting from the bus she saw plaintiff lying west of the west edge of Western Avenue on the curbless sidewalk which extends west from the crosswalk lines.

On adverse examination the witness stated it was her belief plaintiff came into contact with the metal located underneath the bus door and behind the right front wheel. She did not know if the right front wheel passed over plaintiff's foot. She stated contact between the bus and plaintiff took place approximately 1 foot west of Western Avenue and that the bus had to go "west to the west edge" in order to make contact with plaintiff. However, on direct examination, the witness explained she had become confused during her adverse examination and stressed several times that the bus never went over the western edge of Western Avenue.

Sandra Potts testified she was walking west onto the school parking lot and was at a point opposite the middle of the cross-walk lines when plaintiff and another little boy ran past her in an easterly direction. She was west of the west edge of Western Avenue when she heard a scream, turned around and saw plaintiff standing, holding his foot. Plaintiff was right on the west edge of Western Avenue. She laid him down on the curbless sidewalk. All four wheels of the bus were on the pavement of Western Avenue. The bus was pointed directly south and there were no tire marks at the beginning of the drainage ditch. On cross-examination the witness further explained that when she first saw plaintiff he was standing perhaps a few feet west of Western Avenue.

Plaintiff's mother arrived at the intersection several minutes after the incident. She saw plaintiff lying on the pavement 2 or 3 feet west of Western Avenue. His clothes were muddy and the right pants leg was ripped at the bottom. A tire mark was visible on the lower right pants leg.

Plaintiff, 11 years old at trial, was 6 years old at the time of the incident. He recalled that he and his friend were playing by the bicycle rack. He first saw the bus when he was running toward the crosswalk. He stated the bus was moving "toward the sidewalk." When he saw the bus he tried to stop and slid in the mud. His feet were pointed toward Western Avenue. On cross-examination plaintiff stated he "cut the corner" at the drainage ditch, planned to stop at the edge of the pavement, but forgot the ground was muddy.

It is defendant's position that from the evidence presented the jury could well have concluded Vandenbil was proceeding cautiously through the intersection and the bus remained on the pavement of Western Avenue when plaintiff slipped in the mud and slid underneath the bus. Plaintiff argues that Vandenbil's statements during adverse examination, as well as several prior inconsistent statements made by this witness to an investigator and during a deposition, overwhelmingly support plaintiff's theory of negligence.

In support of this position, plaintiff points to six instances wherein it is claimed Vandenbil's testimony was impeached. On July 11, 1972, Vandenbil stated to an investigator that she saw the boys coming toward the bus and then slammed on the brakes. At trial she denied the accuracy of this prior statement. In her deposition, Vandenbil had stated she was traveling at 10 miles per hour rather than the 0 to 10 miles per hour speed stated at trial; she first saw plaintiff slightly north of rather than directly at the bicycle rack; the right front wheel came into contact with plaintiff; and the car blocking the east-west sidewalk departed prior to the incident. Plaintiff also contends Vandenbil's statement on adverse examination to the effect that the right front wheel left the pavement established that the impact took place 1 foot west of Western Avenue, despite Vandenbil's later statements on direct examination explaining she had erred in this description of the position of the wheel.

• 1, 2 Defendant correctly urges that impeachment is used solely to attack the credibility of a witness, not as substantive proof and credibility remains a question of fact for the jury. In Converters, Inc. v. Industrial Com. (1975), 61 Ill.2d 218, 334 N.E.2d 155, the supreme court emphasized that out-of-court statements inconsistent with testimony of a witness do not "`per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies.'" (Converters, Inc., 61 Ill.2d 218, 224, quoting from Guthrie v. Van Hyfte (1966), 36 Ill.2d 252, 258, 222 N.E.2d 492.) Moreover, prior inconsistent statements are introduced for the purpose of destroying the credibility of a witness "rather than to prove the truth of the matters stated in the impeaching testimony." Kubisz v. Johnson (1975), 29 Ill. App.3d 381, 383, 329 N.E.2d 815, appeal denied (1975), 60 Ill.2d 597; accord, People v. Gant (1974), 58 Ill.2d 178, 183-85, 317 N.E.2d 564; People v. Powell (1973), 53 Ill.2d 465, 472, 292 N.E.2d 409.

Therefore, we may not consider Vandenbil's prior inconsistent statements as direct evidence of liability. These various inconsistencies urged by plaintiff in this court were carefully and thoroughly presented during the examination of Vandenbil. It remained the function and responsibility of the jury to determine the extent to which Vandenbil's credibility was destroyed. Similarly, the contradiction within Vandenbil's testimony regarding ...

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