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Riley v. Johnson

OPINION FILED JULY 27, 1981.

MARGARET ANN RILEY, A MINOR, BY ALBERT RILEY, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

GWENDOLYN D. JOHNSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Margaret Ann Riley, an 8 1/2-year-old minor, sued defendant, Gwendolyn D. Johnson, for injuries she received when struck by an automobile driven by defendant. A jury returned a $15,000 verdict in favor of plaintiff and answered in the negative a special interrogatory as to whether plaintiff was contributorily negligent. Judgment was entered on this verdict. Defendant filed a post-trial motion for judgment notwithstanding the verdict or for a new trial. The trial court denied the motion. Defendant appeals.

The accident occurred on July 25, 1974, between 6:30 and 7 p.m., at or near an alley near the intersection of Morgan and 79th Streets in Chicago. It was a sunny, dry day, light outside. Traffic was busy. Morgan is a north-south four-lane street; the two outer lanes are used for parking and the two inner lanes for moving traffic, one north and one south. 79th Street is an east-west street. The neighborhood at the scene of the accident is residential. There is no crosswalk at the alley. The nearest crosswalk is south of the alley at 79th Street.

Plaintiff testified that she and several children, including a girl named Cynthia, were playing in the alley which was north and west of the intersection. Plaintiff and Cynthia decided to get some ice cream. They walked east in the alley to Morgan and then walked south on the sidewalk on the west side of Morgan. To reach the ice cream store, they had to cross to the east side of Morgan. Before reaching the intersection, they began to cross Morgan. They walked between two cars parked at the west curb and then between two cars in the southbound lane of Morgan which were stopped because of the red traffic light at the intersection. When the two reached the centerline of Morgan, Cynthia crossed the northbound lane and reached the other side of Morgan. Plaintiff stood on the centerline and looked both south and north. Seeing no cars coming from the south, she began to walk across the northbound lane and was hit by defendant's car which she never saw. Plaintiff received head injuries and a complete fracture of the right femur. She was put in traction and then spent two months in a half-body cast.

On cross-examination, when asked if she was four feet tall at the time of the accident, plaintiff said she was pretty tall and had been tall for a long time. She was not much shorter than the top of a car. When asked whether she knew she should not be walking out between parked cars, she answered in the negative.

Plaintiff's mother testified that she had taught plaintiff to cross in the crosswalk.

As an adverse witness, plaintiff testified that while waiting for the cars to come to a stop for the red light, she was on the grass between the curb and the sidewalk. Before crossing the northbound lane on Morgan, she looked in both directions and did not see any cars north of the intersection. She looked in both directions and began to cross the northbound lane. She was struck then.

Defendant testified that she was driving a new car only one month old, with power brakes and in perfect mechanical condition, and had received her license in June of that year. She had taken driver's education courses for one year. She further testified that she had been eastbound on 79th Street and wanted to turn north on Morgan. She was very familiar with the intersection because she had lived in the area for the past 10 or 11 years. The intersection is commercial, but north of the alley the area is residential. She knew it was a residential area and that there were many people on the streets, including children. When she reached that intersection, she had to wait for westbound traffic on 79th Street to clear the intersection. She did not remember that in her deposition she had answered that she did not look on Morgan Street, but was just watching the traffic coming in the opposite direction. When the traffic cleared, she turned left (north) onto Morgan at between 10 and 15 miles per hour. Just before she reached the alley, which was not more than three car lengths from the intersection, she struck plaintiff, who was moving and whom she saw only one second before the accident. Prior to the accident, she did not see a pedestrian cross the northbound lane on Morgan.

Defendant further testified that at the time of the accident the southbound traffic on Morgan was backed up past the alley. Her car was traveling about a foot inside the centerline. When she saw plaintiff, she could not swerve because of the cars parked to her right. The car stopped as soon as she applied the brakes. There were no skid marks. Plaintiff was lying in front of her car; plaintiff's body did not go up in the air.

Defendant's sister, Sharon, who was a passenger on the front seat of defendant's car, testified that after turning into Morgan she was looking straight ahead and that prior to the accident defendant was traveling not more than 20 miles an hour. The next thing she knew there was a little girl; she just saw her and defendant could not put on the brakes — it was too late.

Defendant contends that a verdict should have been directed in her favor because she was not negligent and because plaintiff was contributorily negligent. We disagree.

• 1 Questions of one's due care, another party's alleged negligence and the proximate cause of such injured party's injuries and damages are pre-eminently questions of fact for a jury's determination. Under our system of jurisprudence, jury determinations can be set aside only when a court of review, or a trial court upon proper motion, is clearly satisfied that they were occasioned by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence. (Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 623, 126 N.E.2d 836.) Contributory negligence is nothing more than negligence on the part of a plaintiff and the rules of law applicable to negligence of a defendant are likewise applicable to the contributory negligence of a plaintiff. In general, the question of negligence is one of fact. McCann v. City of Waukegan (1967), 83 Ill. App.2d 284, 287, 227 N.E.2d 558.

• 2, 3 A child between the ages of 7 and 14 is presumed to be incapable of contributory negligence. (Hardy v. Smith (1978), 61 Ill. App.3d 441, 378 N.E.2d 604.) The presumption, however, may be rebutted by offering proof that the particular child, based on age, mental capacity, intelligence and experience, was accountable for his actions. (Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1969), 42 Ill.2d 103, 245 N.E.2d 762.) Once such proof is offered, the question of contributory negligence becomes a question of fact which must be left to the jury to determine. (Thomas v. Price (1980), 81 Ill. App.3d 542, 401 N.E.2d 651; American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App.2d 406, 202 N.E.2d 79; Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 149 N.E. 23; Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill. App.3d 1091, 415 N.E.2d 615.) 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 v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.

The jury here could have found under the evidence that the defendant, waiting on 79th Street to turn left onto Morgan, was concerned with oncoming traffic and when it cleared she turned left at 10 to 15 miles an hour and accelerated to 20 without paying proper heed ...


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