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Mooney v. Etheridge

OPINION FILED NOVEMBER 8, 1978.

CAROLYN ANN MOONEY, BY ROBERT MOONEY, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

LUANNE ETHERIDGE ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kendall County; the Hon. WILSON D. BURNELL, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Carolyn Ann Mooney, a minor, by her father brought suit against the defendant Luanne Etheridge, the operator of a motor vehicle which struck and injured her, and against the defendant the Oswegoland Park District which sponsored ballet lessons the minor was preparing to attend when hurt. The court directed the verdict for the Park District at the close of all of the evidence. The jury returned a verdict in favor of the defendant driver. Plaintiff appeals contending that the court erred in directing the verdict for the Park District; and erred in refusing an instruction on the issue of speed in the case against Etheridge. She also claims error in denial of access to a statement made by the driver to her insurance company.

The minor was eight years old at the time of the accident. Along with her sister she was being driven by their mother to ballet dancing lessons conducted at the Oswegoland Civic Center, which is owned and operated by the defendant Park District. When Mrs. Mooney arrived at the center the parking lot was full and there was a car backing out of the sole available entrance to the lot. There was street parking available, however, on both sides of the street. There was also an area for perpendicular parking adjoining the street and this area had parking spaces available. Mrs. Mooney parked her van on the far side of the street across from the Civic Center and plaintiff proceeded to exit the vehicle.

At this time the defendant driver, Mrs. Etheridge, had just dropped off her daughter in front of the Civic Center across the street from where the Mooney vehicle was located to attend swimming lessons. There were several other children present in the area. Mrs. Etheridge proceeded down the street some 500 feet to a parking area adjacent to the street where she reversed direction and proceeded back in the direction of the Civic Center.

As the Etheridge vehicle again reached the Civic Center, the minor was crossing the street so as to enter the building. The testimony is uncontroverted that plaintiff crossed from in front of the Mooney van. The testimony, however, is controverted as to whether plaintiff ran into the street or whether she was merely walking fast. There is also a controversy as to whether plaintiff attempted to retreat when she saw defendant's vehicle while she was in the street. In any event, Mrs. Etheridge did not see plaintiff until plaintiff was approximately 4 or 5 feet away from her automobile. She applied her brakes but nonetheless the car drove over plaintiff's foot and leg resulting in severe injuries.

• 1 We first consider plaintiff's argument that the trial court erred in refusing to instruct the jury on the issue of the speed of the defendant driver. Although defendant argues that any claim of error has been waived because of the failure to include the specific issue in plaintiff's post-trial motion, we reach the issue on the basis of the general statement in the motion that the trial court erred "in refusing instructions tendered by the Plaintiff." Only one instruction was in fact refused, that relating to a claimed violation of the speeding statute. (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-601(a).) We conclude that the issue was sufficiently identified and preserved for review despite the inaccurate use of the plural "instructions." (See Wozniak v. Segal, 56 Ill.2d 457, 460-61 (1974); Osborne v. Leonard, 99 Ill. App.2d 391, 396 (1968).) But, reaching the issue, we find no reversible error under the circumstances of this case.

The refused instruction was in the form of Illinois Pattern Jury Instruction, Civil No. 60.01 (2d ed. 1971) (hereinafter IPI) charging the statutory violation, as pertinent,

"No vehicle may be driven upon any highway of this state at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed * * * when special hazards exist with respect to pedestrians * * *." (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-601(a).)

The tendered instruction also includes the following:

"If you decide that a party 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 a party was negligent * * *." IPI Civil No. 60.01 (2d ed. 1971).

• 2 It is well established in Illinois that "`the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence.'" (Davis v. Marathon Oil Co., 64 Ill.2d 380, 390 (1976).) Nevertheless, instructions concerning violations of statutes or ordinances should not be given unless the evidence is adequate to support a violation. (Figarelli v. Ihde, 39 Ill. App.3d 1023, 1026 (1976).) Even though the instruction might properly be given the refusal in a particular case is not prejudicial error requiring reversal where its absence does not deprive a plaintiff of a fair and impartial trial. Maddox v. Smith, 67 Ill. App.2d 374, 381 (1966).

In this case it is questionable whether the evidence was sufficient to require the giving of the instruction since the proof at best shows that plaintiff was traveling no more than 20 miles per hour. This was below the maximum speed in the area and the question posed is whether the jury might be permitted to find 20 miles per hour in the presence of children to be an unreasonable speed pursuant to section 11-601(a) of the Motor Vehicle Code. It is noted that the related section pertaining to speed in a school zone permits a speed of 20 miles per hour. See Ill. Rev. Stat. 1977, ch. 95 1/2, par. 11-605.

• 3, 4 In any event, any error in the refusal of an instruction on this record cannot be said to have prevented a fair and impartial trial. An instruction on speed calls upon the jury to examine all the facts and circumstances in evidence including speed and then to decide whether a party should have reduced his speed to avoid a collision. (Estate of McCullough v. McTavish, 62 Ill. App.3d 1041, 379 N.E.2d 890 (1978).) Thus the Motor Vehicle Code applies a standard of reasonable conduct which in the practical sense is coextensive with general negligence principles applicable to accidents involving motor vehicles. The general negligence instruction informed the jury in the language of Illinois Pattern Instructions Civil 10.01 that negligence consists of "the failure to do something which a reasonably careful person would do or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence * * *." And in the language of IPI Civil 10.02 (2d ed. 1971) the jury was informed that "ordinary care" is the "care a reasonably careful person would use under circumstances similar to those shown by the evidence." The jury was therefore called upon to make the identical determination required by the Motor Vehicle Code as to whether defendant's conduct was reasonable under all the circumstances under the general instructions which it received. We therefore conclude that any error in the refusal of the instruction charging a violation of the speeding statute, and we have found none, was not cause for reversal.

• 5 We also find that the trial court did not err in refusing the request of plaintiff's counsel for a statement made by the defendant to her insurance carrier. The statement was requested prior to trial and again in the course of trial during defendant's testimony and in each case was refused on the ...


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