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Kennedy v. Kiss

OPINION FILED OCTOBER 23, 1980.

HELEN KENNEDY, A MINOR, BY EDWARD KENNEDY, HER FATHER, GUARDIAN AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

LESLIE KISS, DEFENDANT-APPELLANT. — (ALLSTATE INSURANCE COMPANY, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES E. FREEMAN, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The plaintiff, a minor, was struck by defendant's vehicle while crossing a busy highway. She recovered a judgment both for her injuries and for the medical expenses incurred. The defendant has appealed, contending that (1) the plaintiff failed to prove her claim for medical expenses insofar as she failed to establish her parents' lack of contributory negligence and (2) the trial court improperly restricted the defendant's examination of the plaintiff as to her prior training and experience in crossing busy highways. We agree and reverse.

The plaintiff has appealed from the trial court's dismissal of an amended complaint against the defendant's liability insurer for the excess judgment. We find no error and affirm the dismissal.

The plaintiff alleged in her complaint that on July 4, 1974, she was struck by the defendant's automobile through his negligence. She alleged that she had been in the exercise of that same care which a reasonably careful minor of the same age, mental capacity and experience would use under the circumstances. She sought recovery for pain and suffering and mental anguish, medical expenses (although she was a minor) and loss of income due to her inability to follow her usual occupation. She further alleged that her parents had assigned their right to recover for medical expenses to her. She did not, however, allege that her parents had been free from contributory negligence.

Before the commencement of the trial, the trial judge ruled, over the defendant's protest, that the defendant could not inquire as to the plaintiff's training by her parents or as to their teaching the plaintiff proper ways to cross the street. He further barred any inquiry as to whether plaintiff had previously been involved in a car-pedestrian accident.

Five witnesses, all called by the plaintiff, testified at trial: the defendant, Leslie Kiss, Ray Silver, driver of another car, the plaintiff, Helen Kennedy, her father, Edward Kennedy, and Dr. Alvary. The latter's testimony related solely to the injuries suffered and the treatment thereof, all of which is irrelevant since there has been no objection to the amount of the awards.

The accident took place on Route 120, a two-lane highway with a yellow centerline, at approximately 7:30 p.m. on July 4, 1974. The defendant was traveling east at the time. He testified that he first saw the plaintiff when he was stopped about five or six feet away from her in heavy, stop-and-go traffic. Plaintiff was looking out from behind a truck stopped in the westbound lane. She then turned and went back out of sight. Defendant was able to see her head when she turned back, and to see her legs as she walked back, but only for a step or two. After that he could not see her since the truck was still blocking his view. His line of cars started to move again so he started up. He looked at the street as he was driving but she was not there. He was almost sure she had gone back to the side of the road because she had seen that the traffic was moving. He did not see her again until she came running out in front of the car. As soon as he saw her, he put his foot on the brake and tried to turn his wheel to the right so as not to hit her. But the left side of the car struck her. At the moment of impact he was traveling approximately three or four miles an hour.

Silver testified that his automobile had been two vehicles behind defendant's car in the eastbound lane when the accident occurred. He stated that the traffic was medium and that the cars were all traveling about 20, 25 miles per hour and had not made any stops in the last 200 feet before the accident. He did not witness the accident itself. He had to make an emergency stop when the two cars in front of him did. Had he not applied his brakes quickly, he would have hit the car in front of him. It was his opinion that the car in front of him put on its brakes quite hard because the car in front of it, defendant's car, had put its brakes on quite hard. The court excluded testimony that Silver stated immediately after the accident that "in my opinion, this guy didn't do anything wrong."

The plaintiff testified that she was 7 1/2 years old at the time of the accident. At that time she was about 4 feet tall and weighed 50 to 60 pounds. She lived on River Road, which intersects with Route 120 a half block from the scene of the accident. Living with her at the time were her father, mother, one brother and three sisters; her brother and sisters were all older than plaintiff.

On July 4, 1974, plaintiff left her home alone to go to a food store about one-half block away on the other side of Route 120 to get some candy. It was light and nice out. Plaintiff had been going to that store and an ice cream store on the same side of the street frequently ever since she turned seven. In response to defense questioning, plaintiff stated that she sometimes went to the store with her older brother and sisters. Plaintiff's attorney objected and moved to strike. At a conference in chambers, the court sustained the objection and ruled that the standard of care to be applied was what a child of the same age would do, not what she would have done if she had proper training, or what she was accustomed to do in the past. He agreed to allow questioning as to how often she crossed the street.

Plaintiff bought the candy and started to return home. She unwrapped the candy and started eating it when she left the store. She walked to the edge of the roadway. There was no sidewalk located there. There also was no intersection or crosswalk at the point where she chose to cross the highway.

At the edge of the road she looked to her left and her right. A car on her left stopped and waved her across. She ran to the middle of the road. She stopped there for about five or six seconds. She saw defendant's vehicle which was about three or four car lengths away. The car was slowing down. She assumed it was going to stop and started to run across defendant's lane of traffic. She was hit by the front of defendant's automobile.

Plaintiff's father testified that Route 120 is an east-west, two-lane street cutting through the center of McHenry and is heavily traveled. There were several commercial establishments on Route 120 in the area of the accident, including a gas station, two restaurants, and an automobile parts store. There are no sidewalks, curbs or crosswalks in front of the grocery store where plaintiff went. He identified two exhibits which were introduced into evidence. One was an assignment to the plaintiff of the parents' right to recover medical expenses arising from the accident. The other was a hospital statement in the amount of $1,752.30 for plaintiff's stay in the hospital. The statement indicated that while plaintiff was the patient, the charge was billed to her father, not plaintiff, and was paid by Travelers Insurance Company.

A third exhibit introduced was a statement of services rendered by Dr. Alvary. The charges totaled $770. We have been unable to locate any evidence in the record tending to show ...


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