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Hardy v. Smith

OPINION FILED JULY 7, 1978.

DALE HARDY, INDIV. AND AS FATHER AND NEXT FRIEND OF JAMES HARDY, A MINOR, PLAINTIFF-APPELLANT,

v.

DARLENE SMITH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Vermilion County; the Hon. PAUL M. WRIGHT, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Can a 13-year-old minor be guilty of contributory negligence as a matter of law?

We say yes.

But let us see why.

• 1 James Hardy was injured at the intersection of Attica Street and a north-south alley in Rossville, Vermilion County, Illinois. The alley meets the sidewalk on Attica Street at less than a 90° angle and a building closely borders the southeast corner of the alley and sidewalk. He was walking fast on the south side of Attica Street with a babysitter and his two younger sisters behind him. The foursome were on their way to an ice cream parlor.

James stopped at the intersection of the sidewalk and alley with his foot one inch east of the red curb. He looked south, then north, then south again. Looking south he could see all the way to the end of the alley. He then stepped into the alley where the right front wheel of defendant's automobile came to a stop on his foot. Defendant had stopped at a stop sign in the alley and was inching forward at a speed of a couple miles per hour. The accident occurred in late afternoon on a warm sunny day with good visibility.

Following discovery, defendant filed a motion for summary judgment. The trial court granted the motion finding James Hardy guilty of contributory negligence as a matter of law. On appeal, plaintiff argues that a child between the ages of 7 and 14 cannot be contributorily negligent as a matter of law.

• 2 Contributory negligence is ordinarily and preeminently a question of fact for a jury (Ballard v. Jones (1974), 21 Ill. App.3d 496, 316 N.E.2d 281), but it is a question of law when no contrary verdict could stand. (Bekins Van Lines, Inc. v. Chicago Transit Authority (1975), 33 Ill. App.3d 996, 339 N.E.2d 507; Shannon v. Addison Trail High School, District No. 88 (1975), 33 Ill. App.3d 953, 339 N.E.2d 372.) The rule is stated with clarity in Smith v. Bishop (1965), 32 Ill.2d 380, 383-84, 205 N.E.2d 461, 463:

"The rule is elementary that if there is any evidence of contributory negligence on the part of the plaintiff a question of fact is presented which must be left to the jury for determination. Whenever a question remains whether either party had performed his legal duty, or has observed that degree of care required of him by law, and its determination involves a consideration and weighing of the evidence, the question must be submitted as one of fact. But it is also the law that when all the evidence is considered in its aspect most favorable to the other party, together with all reasonable inferences, and it appears therefrom that there is no evidence from which negligence could reasonably be inferred, it is the trial court's duty to direct a verdict accordingly."

• 3-5 Whether a minor aged 7 to 14 is contributorily negligent is also for the jury to determine taking into consideration the age, capacity, intelligence, and experience of the child. (Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149 N.E. 23; Bertagnolli v. Ambler (1973), 10 Ill. App.3d 983, 295 N.E.2d 279.) A child between the ages of 7 and 14 is presumed to be free of contributory negligence. (McWethy v. Lee (1971), 1 Ill. App.3d 80, 272 N.E.2d 663.) However, this rebuttable presumption only creates a prima facie case and once evidence opposing the presumption comes into the case, the issue is determined on the basis of the evidence as if no presumption had ever existed. (Diederich v. Walters (1976), 65 Ill.2d 95, 357 N.E.2d 1128.) If the trial court can say only one reasonable inference can be drawn from the facts, not only does the presumption cease to exist, but the question becomes one of law. Heimann v. Kinnare (1901), 190 Ill. 156, 60 N.E. 215.

Plaintiff here maintains that although not explicitly stated, Maskaliunas overruled Heimann so that a child's contributory negligence is always a question of fact. In Heimann, a 13-year-old boy went with his brother to a clay-hole to see if the ice was strong. He ran down a hill, jumped over the broken ice around the bank, slid out on the ice, and then went down and drowned. After first noting that if the evidence is conflicting as to whether the injured person was guilty of contributory negligence, the question should be left to the jury, but if the court can say that only one inference can be drawn from the facts, then the question becomes one of law. The court held that the trial court should have withdrawn the evidence from the jury and found for the defendant.

In Maskaliunas, a 7-year-old boy was injured when he attempted to climb onto a railroad car. The court observed that a properly fenced right-of-way might have served as an obstacle, notice or signal of danger, rather than a constant invitation to children frequenting an adjacent playground to use it as a thoroughfare. It was held that the culpability of a child between the ages of 7 and 14 was a question of fact for the jury, taking into consideration the age, capacity, intelligence and experience of the child. The fact that Maskaliunas followed the general rule certainly does not mean that all exceptions to that rule have been overruled.

The Maskaliunas court cited Rasmussen v. Whipple (1912), 211 Mass. 546, 98 N.E. 592, as authority for its proposition. In Rasmussen, the court stated that if the deceased minor had suddenly jumped out in front of the approaching car, his conduct would be condemned as careless. However, the court went on to note that:

"But there were other versions of the conduct of the deceased which the jury apparently accepted and we cannot say as a matter of law that they were not warranted in doing so. Taking the evidence most favorable to the plaintiff, and recognizing that the standard of care by which the conduct of his intestate must be measured is not that of an adult but of the ordinarily careful boy of twelve years, we are of opinion that the case comes within the general rule that when a minor lawfully walking in the highway is run over by a vehicle, the question of ...


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