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01/07/94 TAMARA CATES v. DONALD J. KINNARD

January 7, 1994

TAMARA CATES, PLAINTIFF-APPELLANT,
v.
DONALD J. KINNARD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois. No. 90-L-10159. Honorable Robert C. Lorz, Judge, Presiding

Released for Publication February 9, 1994. As Corrected March 10, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

The plaintiff, Tamara Cates, brought this negligence action against the defendant, Donald J. Kinnard, to recover damages for injuries she suffered when the defendant's vehicle struck her bicycle. The jury returned a verdict for the defendant. The plaintiff appeals, raising seven issues, including that the jury's verdict was against the manifest weight of the evidence, that defense counsel made improper comments regarding the length of time it took the plaintiff to file suit, and that the court erred with respect to the jury instructions given. We affirm.

FACTS

The plaintiff was severely injured in June 1984, when she was struck by the defendant's vehicle at an intersection in Lockport, Illinois. The defendant was proceeding south and the plaintiff was proceeding west at the time of the collision. The speed limit in the area was 30 m.p.h. The plaintiff had a stop sign, but the defendant did not. The plaintiff was 13 years old at the time of the accident. The plaintiff did not recall any of the events occurring immediately prior to the accident because she suffered from amnesia.

The plaintiff's friend, Kamie Cruce, was an eyewitness to the accident. She was 12 years old at the time of the accident. Kamie testified that as the plaintiff approached the stop sign, the plaintiff squeezed her brakes, but her bike did not stop. The plaintiff then yelled, "my brakes don't work." At that point, she dragged her feet in an attempt to stop. The plaintiff was unsuccessful however; so, when she reached the intersection, she put her feet back on the pedals and rode on an angle to avoid being struck by the defendant's car.

Kamie further testified that she noticed the defendant's car when it was six or seven car lengths away from the point of impact. She thought that the defendant was travelling about 50 m.p.h. According to Kamie, the defendant did not honk his horn or swerve to avoid the accident. She noted that the brakes on the plaintiff's bike had been working properly up to the point when they failed immediately prior to the accident.

The defendant testified that he was travelling southbound and the plaintiff came to the intersection from his left. He first saw the plaintiff's head before she got to the stop sign. His vision was partially obstructed by a 3-foot elevated lawn, but he could see the plaintiff's head bobbing up and down and that she was pedaling like crazy on a bicycle. The defendant stated that he was travelling within the speed limit and that he slammed on his brakes as soon as he saw the plaintiff. His car came to a stop within the intersection. The defendant noted that he had lived in the area for 30 years and knew that children could likely be in the vicinity.

The Lockport Police Chief testified that the defendant's vehicle left 47 feet of skid marks to the point of impact. He further testified that he examined the defendant's brakes and tires following the accident and they seemed to be in proper working order.

MANIFEST WEIGHT/DIRECTED VERDICT

On appeal, the plaintiff first argues that the jury's verdict should be set aside because it was against the manifest weight of the evidence. She also contends that the trial court erred in denying her motion for a directed verdict.

A court of review will not disturb the findings of a jury unless it is able to say that there is no evidence which fairly tends to support the verdict. ( Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091.) Regarding directed verdicts, it is well settled that verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict could ever stand. ( Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Such factors as conflicts in the evidence, controverted facts, and the demeanor or credibility of the witnesses are properly matters solely within the province of the jury. ( Zelinski v. Security ...


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