APPEAL from the Circuit Court of Williamson County; the Hon.
GEORGE OROS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Frederick Russell, defendant in this cause, appeals from an order of the circuit court of Williamson County granting the plaintiff, Nick Varacalli, a new trial in a personal injury action after the jury had returned a verdict in favor of Russell. This action arose out of personal injuries sustained by Varacalli after being struck by an automobile. At the time of the accident, Varacalli was nine years old, but he was no longer a minor when the case was finally brought to trial, and the complaint was amended to reflect this fact. After a verdict was rendered in favor of Russell, Varacalli filed a post-trial motion seeking a new trial on several grounds, one of which was that the trial court had improperly instructed the jury as to Varacalli's standard of care with respect to contributory negligence. Accepting Varacalli's contention, the trial court granted him a new trial. The sole issue on appeal is whether or not the trial court erred in granting the new trial on the basis of the written instructions submitted to the jury.
Specifically, Varacalli objected to the trial court's acceptance of Defendant's Instruction No. 6 and its rejection of Plaintiff's Instruction Nos. 10 and 11. Defendant's Instruction No. 6, Illinois Pattern Jury Instruction, Civil, No. 21.02 (2d ed. 1971) (hereinafter IPI), stated:
"The plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff before and at the time of the occurrence was using ordinary care for his own safety;
Second, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;
Third, that the plaintiff was injured;
Fourth, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. But, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant."
Plaintiff's Instruction No. 11, modified IPI Civil No. 20.02, which was refused, is as follows:
"The plaintiff, Nick Varacalli, has the burden of proving each of the following propositions:
First, that the plaintiff, Nick Varacalli, before and at the time of the occurrence was using ordinary care for a child of his age, capacity, intelligence and experience for his own safety;
Second, that the defendant, Frederick Russell, acted or failed to act in one of the ways claimed by the plaintiff, Nick Varacalli, as stated to you in these instructions, and that in so acting or failing to ...