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03/01/88 Helen Thomas, Adm'x of the v. Nelson Brothers Furniture

March 1, 1988

HELEN THOMAS, ADM'X OF THE ESTATE OF JOE FRANK THOMAS, PLAINTIFF-APPELLANT

v.

NELSON BROTHERS FURNITURE COMPANY, DEFENDANT-APPELLEE (HAL SMITH ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

520 N.E.2d 1078, 167 Ill. App. 3d 49, 117 Ill. Dec. 727 1988.IL.274

Appeal from the Circuit Court of Cook County; the Hon. Frank Orlando, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. BILANDIC and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

On November 27, 1978, a southbound vehicle struck and killed six-year-old Joe Frank Thomas (Thomas) while he was crossing Wabash Avenue in Chicago. Just before striking Thomas, Josie Eubanks (Eubanks), driver of the southbound vehicle, veered around a Nelson Brothers Furniture Company (Nelson Brothers) truck that Hal Smith (Smith), a Nelson Brothers employee, had parked on the west side of Wabash Avenue. The plaintiff, Thomas' mother (Mrs. Thomas), filed a lawsuit naming Eubanks, Smith, and Nelson Brothers as defendants. During the course of the trial, Mrs. Thomas settled with defendant Eubanks and voluntarily dismissed defendant Smith from the lawsuit. The only issue presented to the jury at trial, therefore, was the liability of Nelson Brothers. When the jury was unable to reach a unanimous verdict, the trial Judge declared a mistrial. The trial Judge then granted the defendant's post-trial motion for a directed verdict. Shortly thereafter, the plaintiff appealed.

On November 27, 1978, Thomas came home from school, did homework, and went outside to play in the snow with his cousins and three other friends. Once outside, the boys made a snowman and had snowball fights. The boys ended up playing on the 7100 block of South Wabash Avenue.

Wabash Avenue runs north and south and traffic moves only in a southbound direction. The surrounding neighborhood is a residential area. At the time of the accident, Smith and his assistant Andre Perkins (Perkins), in their capacity as Nelson Brothers employees, were delivering furniture to 7120 South Wabash Avenue. Smith was driving a white truck with blue Nelson Brothers lettering on it. While Perkins delivered the furniture to the customer, Smith parked the 22-foot-long truck on the west side of the street directly in front of 7120 South Wabash Avenue.

The witnesses gave conflicting testimony as to how the truck was parked. Nettie Cannon, a woman who lived on the east side of Wabash Avenue at 7127, testified that the Nelson Brothers truck was doubleparked for approximately 12 to 15 minutes. Reginald Love, who lived on the east side of Wabash Avenue, went out on the evening of the accident to move his car to a parking space that had opened up in front of his house. Reginald Love noticed the truck across the street appeared to be double-parked. Charles Dean, who also lived on the east side of Wabash Avenue, testified that the truck was parked approximately seven to eight feet away from the west curb.

Thomas' cousins, Leroy and Harold Rainey, testified that other cars were parked between the west curb and the Nelson Brothers truck. Smith, the driver of the truck, stated that he had doubleparked alongside of some cars and that he had backed up his truck into whatever space was available, leaving the back end of the truck sticking out a bit. Perkins testified that Smith had backed the truck in the best that he could but that the truck's back end was sticking out into the street. Eubanks likewise stated that just the back end of the truck jutted out into the street.

It was about 6 p.m. when Perkins exited the truck to make the delivery; it was dark and snowing lightly. While waiting in the truck, Smith observed three or four children playing and hollering nearby. Eubanks was returning home from work when she turned southbound onto Wabash Avenue.

The witnesses gave differing accounts as to how Eubanks drove her vehicle. Smith testified that Eubanks traveled at about 20 miles per hour, stopped behind the truck for three to four seconds and then proceeded to veer around the truck. Leroy Rainey stated at trial that Eubanks stopped for a few moments behind the truck before she "whipped around" the truck and struck Thomas. Eubanks testified that she was traveling at 15 to 20 miles per hour, and that she did not bring her car to a stop before veering slightly to her left to pass the truck.

In the meantime, Thomas was standing on the east side of Wabash Avenue at the concrete drive preparing to cross to the west side of the street. Leroy Rainey testified that Thomas looked north, saw no cars and then began to run across the street. Leroy Rainey hollered out Thomas' nickname, Tiger, and Thomas stopped, at which time the car struck Thomas. According to Leroy Rainey, there was nothing in the street to obstruct the vision of Eubanks. Eubanks testified that she did not see Thomas until the impact and that the Nelson Brothers truck did not obstruct her view of the child.

The passenger side of the car hit Thomas and carried him to the southernmost manhole. As a result of the accident, Thomas died. Mrs. Thomas filed a complaint and named Eubanks, Smith, and Nelson Brothers as defendants. On June 11, 1986, Mrs. Thomas voluntarily dismissed Smith as a party defendant. One month ...


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