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03/10/89 Joycelynn Deming, Indiv. v. Dale Montgomery

March 10, 1989

JOYCELYNN DEMING, INDI

v.

AND AS MOTHER AND NEXT FRIEND OF MICHAEL EUGENE PETERMAN, A MINOR, PLAINTIFF-APPELLANT,

v.

DALE MONTGOMERY, ADM'R OF THE ESTATE OF RANDY MONTGOMERY, DECEASED, DEFENDANT-APPELLEE



Before considering the issues raised on appeal, a brief recitation of the facts is necessary. At trial, plaintiff presented the testimony of defendant's parents, Dale and Laverne Montgomery, as adverse witnesses pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1102). Dale Montgomery testified that he was an avid fisherman and that he had taught defendant how to fish at the age of four and a half. He told defendant about the proper safety measures to be used when fishing. He showed defendant that when he was done fishing, he should loosen his line, bring the fish hook back and place it in the last guide or eye on the fishing rod, and then tighten the fishing line.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

536 N.E.2d 150, 180 Ill. App. 3d 527, 129 Ill. Dec. 466 1989.IL.307

Appeal from the Circuit Court of Williamson County; the Hon. Bill F. Green, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. RARICK and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

This case was brought by Joycelynn Deming on her own behalf and on behalf of plaintiff Michael Peterman, a minor, for personal injuries sustained by plaintiff as a result of a fishing accident involving defendant Randy Montgomery, also a minor. Subsequent to the filing of plaintiff's complaint, defendant died in an unrelated accident, and his father, Dale Montgomery, who was appointed the legal representative of defendant's estate, was substituted as the defendant in this case. This cause of action for negligence was tried before a jury, and a verdict for the defendant and against the plaintiff was entered. Plaintiff filed a post-trial motion, which the circuit court denied. From this judgment and the denial of his post-trial motion, plaintiff appeals.

Montgomery stated that, on October 5, 1983, when defendant was 13 years of age, defendant and two other boys went fishing after school. Montgomery and his wife encountered the three boys on their return from their fishing trip, and, at that time, the boys told them that the fish hook from defendant's fishing rod had become loose and had entered plaintiff's eye. According to Montgomery, his son had stated that immediately before the accident occurred he had attempted to warn plaintiff, who was walking in front of defendant, about the fish hook. When Montgomery saw the boys, plaintiff did not appear to be seriously hurt.

Laverne Montgomery's testimony corroborated her husband's testimony. Additionally, she stated that defendant had told her that they were walking single file along the creek and that defendant had said that plaintiff had walked into the fish hook.

Plaintiff testified that on October 5, 1983, he, defendant and Donnie Thompson were friends. Plaintiff stated that he had been taught to fish by his father. He was aware that a fish hook could cause someone harm and he knew how to place a fish hook on the fishing rod to secure it and to hold the fishing rod at waist level.

Plaintiff stated that he first noted a problem with his right eye early in the morning of October 6, 1983. He did not experience any pain when the accident occurred, but he was awakened the next morning by pain and lack of vision in his right eye. Prior to October 6, 1983, plaintiff had had no problem with his right eye.

As a result of the surgeries performed upon his right eye, plaintiff's vision had declined. Additionally, his eyes are sensitive to the sunlight. When he reads, certain words seem written backwards or the letters appear rearranged. Plaintiff testified that he had not played baseball since his injury, but that he had signed up to play this coming summer. He currently participated in running track.

Defendant read the evidence deposition of Donald Jerry Thompson to the jury. Thompson testified that on October 5, 1983, when he was 12 years of age, he, plaintiff and defendant had gone fishing along a creek. Each of them had a fishing rod and reel, and when they were done fishing for the day, each of them had placed his fish hooks in one of the guides of his fishing rod and reeled up the slack in the fishing line. When they were walking home, plaintiff was walking in front of defendant and it was then that the accident occurred. According to Thompson, no horseplay occurred and defendant did not do anything unusual at the time of the accident. Thompson thought that defendant's fish hook came "ajar" from the fishing rod, that the fish hook swung and then "came back and hit" plaintiff in the eye. Thompson did not recall giving plaintiff any warning about the fish hook as the accident occurred very fast. He did not remember how defendant's fishing rod was angled at the time of the accident.

Thompson did not recall talking to defendant's parents after the accident; however, he did remember that the three of them returned to defendant's home. Thompson stated that plaintiff appeared to be unhurt and that the ...


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