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02/05/88 Fridae Toney, A Minor By v. Jose M. Mazariegos Et Al.

February 5, 1988





FRIDAE TONEY, a Minor by and through her Mother and Next

519 N.E.2d 1035, 166 Ill. App. 3d 399, 116 Ill. Dec. 820 1988.IL.142

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Flanigan and the Hon. Raymond E. Trafelet, Judges, presiding.


PRESIDING JUSTICE LORENZ delivered the opinion of the court. MURRAY and PINCHAM, JJ., concur.


Defendants Jose M. Mazariegos and the Village of Maywood appeal from a $20,010 judgment entered for Fridae Toney (hereinafter plaintiff) following a bench trial in a personal injury action brought on plaintiff's behalf by her mother. The plaintiff, then five years old, sustained injuries after she walked out into the street from in front of an ice cream truck and came into contact with defendant Mazariegos' moving vehicle. On appeal defendants contend: (1) the trial court's finding of negligence by defendant Mazariegos was contrary to the manifest weight of the evidence and plaintiff's own negligence was the sole proximate cause of her injuries; (2) with the adoption of comparative negligence in Illinois, children under seven should no longer be held to be incapable of negligence, so that plaintiff's negligence should have been taken into consideration in determining damages; (3) the trial court acted without authority in increasing the damages awarded from $15,010 to $20,010 in response to plaintiff's motion for a new trial on damages; (4) the trial court erroneously considered medical expenses in its damages calculation; and (5) plaintiff's post-trial motion for leave to file a third-party complaint for contribution should have been granted.

We affirm.

At trial the following pertinent testimony was adduced. Plaintiff's sister, Shenea Toney, who was 10 at the time of the accident and 14 at trial, testified that the accident occurred on May 9, 1982, in the 1400 block of South Second in Maywood. Shenea and plaintiff had crossed to the east side of the street to buy ice cream. As they stood at the curb by the ice cream truck Shenea sent the plaintiff back across the street for more money. Shenea did not see the collision, but heard tires screeching and then saw the plaintiff lying in the middle of the street.

Defendant Mazariegos, a Maywood police officer, was initially called by plaintiff as an adverse witness and then as a witness in his own behalf. Mazariegos testified that the accident occurred at about noon. He had been on patrol in his squad car since 8 a.m. As he drove north on Second Avenue he observed an ice cream truck parked 75 yards ahead on the east side of the street. The day was clear and sunny, and there was no traffic between his vehicle and the truck. Mazariegos testified that he expected the presence of children and was looking for them as he approached the truck. However, he also testified that as part of his patrol duty he would look around the area as he drove. The speed limit was 20 miles per hour, but he was driving 15.

Mazariegos first became aware of the plaintiff when she hit the right front fender of his vehicle as he began to pass the ice cream truck. He therefore did not apply his brakes until after the collision. The officer called for an ambulance and also summoned other Maywood police officers.

The plaintiff testified that she had begun to walk back across the street to obtain more money when she was hit by the police car. She admitted that she did not first look for traffic, even though her mother had previously instructed her to do so. She also stated that she did not see the police car before the collision.

Tina Olison lived three houses away from the Toneys at the time of the accident. From her front porch she saw the ice cream truck parked three houses north of her house. When she first saw the police car it was two houses south of her. As the car passed her house she saw Office Mazariegos looking at her. She then saw the plaintiff walk into the street from in front of the ice cream truck, which was facing north. When the plaintiff was five or six feet away from the car and three or four feet into the street and away from the truck, the plaintiff made a half circle. The car, which Olison estimated was traveling 25 or 30 miles per hour, then struck the plaintiff. On cross-examination Olison admitted that although she saw the officer looking at her as he passed her house she did not know where he was looking when the accident occurred.

Plaintiff's mother testified that the plaintiff was hospitalized for 13 days, including four days in intensive care, for treatment of her fractured jaw. Her mouth was wired for six to eight weeks. During this period plaintiff could not eat solid food, was restricted in her ability to play with other children, and her speech was affected. Plaintiff's father identified a hospital bill paid in connection with ...

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