APPEAL from the Circuit Court of Madison County; the Hon.
VICTOR MOSELE, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Plaintiff Todd Christopher Wallace, a minor, by his father and next friend, Ronald Wallace, brought this personal injury action for damages against defendant, Norbert Weinrich, in the circuit court of Madison County. The jury found defendant not negligent, and the court rendered judgment on the verdict. Plaintiff appeals, contending the verdict was against the manifest weight of the evidence and that the trial court erred in denying plaintiff's motion to amend the complaint and in refusing certain tendered instructions.
Three occurrence witnesses testified at trial, and the facts are not in dispute. The accident occurred August 3, 1971, about 8 p.m. on McArthur Street in Alton, nine days prior to Todd's second birthday. It was daylight at the time. Todd's mother was visiting her sister, Mrs. Bush, who lived next to the Weinriches in the 3600 block of McArthur Street. Todd and his older brother Mark spent most of the "pretty summer day" playing outside. McArthur Street terminates in a dead end at the end of the block where the accident occurred. It has no sidewalks or curbs, but a shallow gutter borders the paved portion of the street. A family named Snyder lived directly across McArthur from the Weinriches, and the Snyders' house fronted on Sherwood Terrace, the nearest intersecting street. The Weinriches' driveway was about 60 feet long from garage to street, and on either side of it near the street was a small shrub which served as a winter driveway marker. The Bushes' driveway is near enough to the Weinriches' driveway that a car parked between them on McArthur might hinder access to one or the other. Photographic exhibits taken several years after the accident show a utility pole between the Bushes' drive and the Weinriches' several feet further from the street than the Weinriches' marker shrubs. In the Snyders' yard near the street and across from the utility pole stands a large conifer.
Defendant, Norbert Weinrich, testified under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60) that at about 8 p.m. on the date of the occurrence he and Mrs. Weinrich left their house to run errands. Mr. Weinrich's Mustang was parked at the near edge of the street directly in front of their house. However, they used the station wagon Mrs. Weinrich usually drove, and Mr. Weinrich adjusted the mirrors and seat before backing down the driveway. He testified his view of the street was unobstructed. He backed up, as he always did, with his left hand on the steering wheel and his right hand across the back of the front bench seat looking back over his right shoulder through the station wagon's center rear window. He backed at "normal" speed with his foot on the brake because the driveway sloped toward the street. He testified that he always stops and looks both ways when the rear of the car reaches the end of the driveway and he assumed he did so that night. He saw no pedestrians or vehicles either while stopped or when he released the brake. He testified he "probably" did not even touch the accelerator. Riding the brake, he crossed the gutter while looking over his right shoulder and turned the steering wheel so that the rear of the car swung to the right toward the dead end. He heard or felt a "bump," and Mrs. Weinrich made some exclamation. He stopped the car, in his estimation, after travelling five feet or less past the unexplained bump. They left the car and found Todd lying on his stomach near the center of the street, his head toward the Snyders', a foot or so in front of the station wagon's front bumper.
Mr. Weinrich estimated the sill of the back window of the station wagon was three feet, or slightly more, above ground level. The Mustang, he said, did not obstruct his vision. He did not see Todd until after the accident. He estimated the time elapsed from the mirror adjustment to impact as about 30 seconds.
Mrs. Weinrich's testimony was consistent with her husband's. She did not see or hear any children until after the accident. She described her husband's backing speed as slow, and she remembered that he stopped on this particular occasion when the rear of the station wagon reached the end of the driveway. She thought she probably helped him look up and down the street as she usually did. After impact he stopped "immediately." Todd was lying "to the front left" of the car. Todd's mother had apparently seen or heard the accident and was on the scene almost immediately.
Mrs. Wallace, Todd's mother, testified she was looking out the Bushes' front door window at the time of the accident. A few minutes previously she had let Todd out into the Bushes' front yard to play. When she went to the front door to call Todd and his older brother, she saw that the Weinriches' station wagon was out of the driveway and still backing at an angle to the driveway. Its wheels were not yet straight. She could not see which way either occupant was looking. She saw the top of Todd's blond head through a side window of the station wagon behind the wagon's front door. The rear bumper had already passed him and apparently he had not yet been struck. Todd was standing still, facing the Bushes', and Mrs. Wallace had no idea how he got there. She saw no other children. Seconds later she could not see him. There had been no time to shout a warning. She ran to the street where the Weinriches were getting out of their car. Todd lay near the front bumper on the driver's side of the car.
Mrs. Wallace estimated the total distance the station wagon moved while in her sight as positively less than one car length and probably less than half a length. She described Mr. Weinrich's backing speed as "normal." She did not estimate Todd's height at the time of the accident. At the time of the accident her oldest son had been in the Snyders' yard across the street. There were few fences in the area, and children were often in each other's yards. She had seen small children in the street on tricycles on other occasions. Todd was not allowed to cross the street without his brother. Todd occasionally played on a swing set at the Snyders', but he had been refused permission to do so that day because his brother Mark did not want to watch him.
Two evidence depositions were read into evidence on plaintiff's behalf. Both included extensive medical testimony regarding plaintiff's injuries, particularly his very serious head injuries. The record on appeal contains several photographic views of the accident scene, admitted into evidence at trial, which were prepared some years after the accident.
Plaintiff's complaint charged defendant with negligence in striking plaintiff with the station wagon's left front tire and fender while backing. His motion for judgment n.o.v. following the verdict for defendant was denied.
Plaintiff urges on appeal that the uncontradicted evidence showed defendant was negligent as a matter of law and that the judgment on the jury verdict for defendant cannot stand and must be reversed. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) We agree.
• 1 In order for this court to hold that the verdict is against the manifest weight of the evidence an opposite conclusion must be clearly evident. (Payne v. Kingsley (1965), 59 Ill. App.2d 245, 207 N.E.2d 177.) Because this was a negligence action plaintiff was obligated to show by a preponderance of the evidence (1) defendant owed plaintiff a duty; (2) that duty was breached by a negligent act or omission; which (3) proximately caused (4) a compensable injury. (Rios v. Sifuentes (1976), 38 Ill. App.3d 128, 347 N.E.2d 337.) The first two of these requirements, proof of a duty owed plaintiff, and its breach, are at issue here. We find it apparent in the facts that there was a duty, imposed by law, owed plaintiff by the defendant and that a negligent breach of that duty was proved as a matter of law by uncontradicted testimony.
• 2 As a child less than two years old, the minor plaintiff is conclusively presumed to be incapable of contributory negligence. (Rios v. Sifuentes; Dix v. Buell (1964), 54 Ill. App.2d 80, 203 N.E.2d 290. See Illinois Pattern Jury Instructions, Civil, No. 11.03 (2d ed. 1971) (hereinafter IPI).) Accordingly, no negligence can be imputed to plaintiff for being in the street or in the path of the defendant's car.
• 3 We have no difficulty finding defendant guilty of negligence as a matter of law and determining that a conclusion opposite to that reached by the jury is clearly evident. The trial court should have granted plaintiff's motion for a directed verdict as to liability. Only the conduct of the defendant is to be considered. The action of the minor plaintiff is not an ingredient. The facts admit of but two conclusions, either the defendant backed his auto into the street without looking or he looked but he did not see. We need not, and, for that matter, cannot, determine which event pertained. The defendant's testimony that he was backing while his left hand was on the wheel, his right hand across the back of the front bench seat, and that he was looking out the rear center window of the car is uncontradicted. Nevertheless, from the testimony of the three occurrence witnesses it is evident that the plaintiff was struck by the left front door or fender as the front of the car was making a sweeping turn to the left for alignment with the street. Given the very small stature of the plaintiff, it is well within the realm of possibility that as defendant was looking over his right shoulder through the rear center window he was unable to see plaintiff to his left and possibly below his line of sight out of the left windows. In this manner plaintiff could well have been in an area of the street into which the defendant did not look. The other possibility is that defendant looked but did not see. As we have stated, either eventuality must be considered conduct which, as to the infant plaintiff, is negligence as a matter of law.
We feel that the result we reach in this case is compelled by certain statutes and common law rules which indicate that the minor plaintiff was lawfully in the street when he was struck and that the defendant was guilty of negligence as a matter of law when he backed his auto into the ...