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Eleopoulos v. Dzakovich





APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.


This action was brought by Margaret Eleopoulos on behalf of her minor son, James Eleopoulos, to recover damages for personal injuries which he sustained as a result of the alleged negligent operation of an automobile by the defendant, John Dzakovich. The jury rendered a verdict in favor of the defendant and the court entered judgment accordingly. The plaintiff appeals, contending that the trial court erred in: (1) denying his motion for a new trial because the jury's verdict was against the manifest weight of the evidence; (2) excluding certain testimony relevant to the defendant's duty to exercise ordinary care; (3) refusing to admit into evidence a photograph depicting the interior of a car similar to that driven by the defendant; and (4) refusing to give an instruction tendered by the plaintiff and instead giving a modified version of that instruction.

The defendant testified that on June 14, 1973, he was driving his father's car north on Cicero Avenue. Karen Mason (formerly Karen Bracharz), was in the passenger seat. The defendant made a left turn onto Hutchinson. There were cars parked along both curbs on Hutchinson, which is a narrow one-way street. As he made the turn, he was going approximately 5 to 10 miles per hour. About 68 to 70 feet from the corner, the defendant stopped his car because he saw another car pulling out of a parking space. The driver waved him on and he accelerated to roughly 10 miles per hour. The defendant did not recall seeing any children in the area.

At some point, as the defendant was traveling down Hutchinson, he saw the minor plaintiff. The boy was on a bicycle and was traveling south from an alley crossing Hutchinson. He was 10 to 15 feet in front of the defendant when the defendant first saw him. The defendant stepped on the brakes and estimated that it took him one to two seconds to stop the car. He felt no impact and did not believe that the car struck the boy or the bike.

The defendant stated that he was driving with both hands on the wheel and was looking straight ahead. His vision was not obstructed and he never took his eyes off the road.

Karen Mason testified that on June 14, 1973, she was with the defendant in the defendant's car. They were northbound on Cicero Avenue. The defendant made a left turn onto Hutchinson. The witness did not remember whether there was a car pulling out of a parking space, but stated that the defendant was driving very slowly. They were traveling down the middle of the street and there were cars parked on both sides. The witness saw no children playing in the area. She then saw a boy on a bicycle in front of the car. The car was going 5 to 10 miles per hour at that time. She did not recall whether the bicycle was traveling faster than the car. She warned the defendant and the defendant applied the brakes. The car came to a sudden stop.

The witness testified that at some time after the car turned onto Hutchinson but prior to the collision, she was looking in the glove compartment. She did not recall what she was looking for or where the car was in relation to the alley. She stated that there was nothing the defendant could have done to avoid the accident. The witness said that she gave a statement at an earlier time when her recollection of the incident was better than her present memory. In her prior statement, which was read to the jury, she stated that the defendant slowed down because there was a car pulling out of a parking area. She and the defendant were proceeding slowly down Hutchinson when a small boy on a bike darted out of the alley. She thought the boy was going much faster than the car.

The plaintiff then read to the jury the evidence deposition of John Sykes. Sykes stated that on the day of the accident he parked his car on Hutchinson Street. After purchasing a newspaper, he returned to his car and started to pull out of the parking space. He stopped when he saw a car making a left turn onto Hutchinson. The car was going approximately 10 to 15 miles per hour. If he had not stopped, there would have been an accident. Sykes stated that the car passed him and then stopped suddenly at the alley. He heard the brakes squeal. Sykes looked through the windshield of his car and saw the plaintiff lying in the street. He did not actually see the defendant's car hit the plaintiff.

Charles Filipek testified that on June 14, 1973, he was walking south through an alley that opened out onto Hutchinson Street. A boy on a bicycle came from behind and passed him. As the boy passed, he said, "gang way," or "get out of the way." He went out into the street without slowing and without looking in either direction. The boy was moving quickly on the bicycle. Filipek stated that he saw the defendant's car a split second before the accident. The car was traveling between 15 and 20 miles per hour. The left front end of the car struck the bike. Filipek was unable to tell if the boy was hit or if he was falling when the car hit the bicycle. The car appeared to stop "on a dime." Filipek stated that in his opinion, there was nothing the driver could have done to prevent the accident.

The minor plaintiff testified that at the time of the accident he was 5 1/2 years old. He rode his bicycle out of an alley into the street without stopping or looking. He was riding "kind of fast."

The plaintiff first contends that the jury's verdict was against the manifest weight of the evidence. He argues that the evidence clearly shows that the defendant operated his vehicle at a rate of speed too fast for conditions and that he failed to keep a proper lookout.

A court of review will not disturb the findings of the jury unless the verdict is against the manifest weight of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App.3d 432, 359 N.E.2d 1078.) Manifest weight has been described as meaning the "clearly evident, plain and indisputable weight of the evidence." (Gettemy v. Grgula (1975), 25 Ill. App.3d 625, 628, 323 N.E.2d 628, 630.) Because it is the jury's function to determine the weight and credibility of conflicting evidence, a reviewing court will not set aside a verdict rendered upon conflicting testimony. Spankroy.

In arguing that the defendant failed to exercise the degree of care required under the circumstances, the plaintiff cites Cooper v. Miller (1978), 67 Ill. App.3d 349, 384 N.E.2d 919, for the proposition that the defendant must exercise a higher degree of care where children could reasonably be expected to be present. The plaintiff points out that the accident occurred on a warm, sunny afternoon in a residential area. He argues that this fact, coupled with the defendant's testimony that he had been in the area before, should have alerted the defendant to the necessity of looking out for children.

• 1, 2 We are not convinced that these circumstances alone were sufficient to alert the defendant to the possible presence of children in the area and therefore trigger the higher degree of care delineated in Cooper. It is apparent that the court in Cooper relied heavily on the fact that the defendant actually saw children playing in the area immediately prior to the accident. This fact is not present in the instant appeal. Moreover, the mere happening of an accident does not raise a presumption of negligence on the part of the driver even when he is aware that there are children in the vicinity. (Stilfield v. Iowa-Illinois Gas & Electric Co. (1960), 25 Ill. App.2d 478, 167 N.E.2d 295.) The plaintiff still bears the burden of proving that the accident occurred as a result of the defendant's lack of due ...

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