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Cooper v. Miller

OPINION FILED DECEMBER 14, 1978.

CARL COOPER, A MINOR, BY CHRISTINE COOPER, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

T.J. MILLER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM B. KANE, Judge, presiding.

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

Plaintiff, Carl Cooper, a minor, by Christine Cooper, his mother and next friend, brought an action to recover damages for personal injuries allegedly proximately caused by defendant's negligence in operating a motor vehicle. At the close of plaintiff's case in chief, defendant made a motion for a directed verdict in his favor. This motion was denied by the court. Defendant renewed his motion for a directed verdict at the close of all the evidence, but prior to the final arguments of counsel. The court granted this motion for a directed verdict in favor of defendant and against plaintiff and found as a matter of law that defendant was not guilty of negligence. Plaintiff appeals. We reverse.

The issues presented for review are (1) whether the trial court erred in directing a verdict in favor of the defendant, and (2) whether the trial court erred in finding that the defendant was not guilty of negligence as a matter of law.

The facts are as follows: On July 13, 1971, the minor plaintiff, Carl Cooper, was 9 years old. At approximately 7 p.m. on that date, plaintiff was playing soccer with a kickball at a lot which was located on the southeast corner of Maypole and Keystone Streets, in Chicago, Illinois. The plaintiff played on the lot every day with his friends.

The defendant, T.J. Miller, lived approximately 2 blocks from the area where plaintiff played, and prior to the date of the accident he drove by the lot frequently. On the date of the occurrence, defendant drove a friend to her home which was located three or four houses south of the lot on Keystone. After leaving his friend at her home, it was about 7 p.m. and the sun was still shining. Defendant traveled north on Keystone and observed 12 to 15 children playing on the lot when he was 25 or 30 feet north of his passenger's home.

Defendant testified that he was operating his motor vehicle at a speed of approximately 10 m.p.h. as he proceeded on Keystone Street. The ball with which plaintiff and his friends were playing was kicked toward Keystone Street. The plaintiff chased the ball onto Keystone Street and was struck by the right front bumper of defendant's car.

During the course of the trial, defendant gave several variations of what occurred. Defendant testified that he saw plaintiff when he (plaintiff) was running toward him. At another time during the trial, defendant stated he saw plaintiff when he was sliding toward the car. Defendant later gave testimony on direct examination that he first saw plaintiff when plaintiff came in contact with the car. On further testimony, defendant stated that the first time he realized an impact had occurred between his car and plaintiff was after he left his car and heard the plaintiff screaming and saw the wheel of the car on plaintiff's foot.

At the close of defendant's case, he renewed his motion for a directed verdict. Defendant claimed plaintiff had not proved a prima facie case of negligence. The trial court sustained defendant's motion and ruled that as a matter of law defendant was not guilty of negligence.

Plaintiff maintains on appeal that the trial court erred in directing a verdict in favor of defendant and against the minor plaintiff. We agree.

The standard to be followed by trial courts> in directing verdicts was rendered in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. The Pedrick court stated:

"In our judgment 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." Pedrick, 37 Ill.2d 494, 510.

In the present case, defendant testified that on the date of the occurrence he observed 12 to 15 children playing near the area of the accident. Prior to that day, defendant testified, he had driven on Keystone Street daily. The minor plaintiff also testified that he played on the lot east of Keystone Street every day.

It can be inferred from the testimony of both parties that prior to the date of the accident defendant was aware of children playing on the lot east of Keystone Street.

It is not clear from defendant's testimony at what point he first saw plaintiff. During the trial court proceedings, defendant's testimony was contradictory and ...


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