Cardona v. Toczydlowski

• Decision Date: 05 March 1962
• Docket Number: Gen. No. 48387
• Parties: Armida CARDONA, a Minor, by Emeterio Cardona, Her Father and Next Friend, Appellee, v. Clyde Marion TOCZYDLOWSKI, Wolf Flour Cartage Co., Inc., a Corporation, and Willie Wiley, Defendants, Wolf Flour Cartage Co., Inc., a Corporation, Certain Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 709

180 N.E.2d 709

35 Ill.App.2d 11

Armida CARDONA, a Minor, by Emeterio Cardona, Her Father and Next Friend, Appellee, v. Clyde Marion TOCZYDLOWSKI, Wolf Flour Cartage Co., Inc., a

Corporation, and Willie Wiley, Defendants,

Wolf Flour Cartage Co., Inc., a Corporation, Certain

Defendant-Appellant.

Gen. No. 48387.

Appellate Court of Illinois, First District, First Division.

March 5, 1962.

Arthur Abraham, George J. Core, Robert L. Brody, Chicago, for appellant.

Samuel E. Bublick, Chicago, Edward Wolfe, Chicago, of counsel, for appellee.

MURPHY, Presiding Justice.

This is a personal injury action, in which the jury returned a not guilty verdict as to defendant, Clyde Marion Toczydlowski, driver of the automobile with which plaintiff collided. A $40,000 verdict was rendered against the defendant Wolf Flour Cartage Company, Inc., owner of a delivery truck, which was double parked in the immediate area of the occurrence. Judgment was entered on this verdict. The trial court denied the alternate motions of defendant Wolf Flour for a judgment notwithstanding the verdict or a new trial, and it appeals.

On August 1, 1958, plaintiff, then about five years of age, lived with her parents in an apartment at the rear of 8810 Houston Avenue, Chicago. At about noon of that day, after leaving the gangway between 8808 and 8810 Houston, she ran into the street, from west to east, and into the right side of Toczydlowski's automobile. Plaintiff sustained serious injuries, which resulted in crossing and a permanent loss of vision of her left eye. There is no claim that the verdict is excessive. No questions are raised on the pleadings.

At the time of the occurrence, the truck of defendant Wolf Flour was parked in front of a bakery at 8802 Houston Avenue. The truck was a 2 1/2 ton green panel truck, with a closed body, 12 to 13 feet long, 7 1/2 to 8 feet wide, and about 10 3/4 feet high. It had doors on the back and on the right side. The truck was double parked, facing south, with its side door opened, about even with a sidewalk trapdoor of the bakery, and Wolf Flour employees were engaged in delivering sacks of flour to the bakery. The driver, Willie Wiley (dismissed as a defendant before trial), was in charge, and Walker Thurman was his helper. Wiley, who had been making weekly deliveries to the bakery since 1956, was in the truck getting sacks of flour ready to pass to Thurman, who was in the bakery basement. Neither saw the occurrence.

Wolf Flour does not dispute that its truck was double parked in violation of the Uniform Act Regulating Traffic on Highways (Ill.Rev.Stat.1957, Ch. 95 1/2, § 187(a), par. 12, which prohibits parking a vehicle 'on the roadway side of any vehicle parked at the edge or curb of a street.' It claims that the position of its standing truck was not the proximate cause of the injury sustained by plaintiff, and that a jury could not reasonably find from the evidence that it was.

Wolf Flour contends that the violation of the parking statute is only actionable if it was the proximate cause of plaintiff's injuries. (Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74, 117 N.E.2d 74, 51 A.L.R.2d 624; Curran v. Chicago & W. I. R. R. Co. (1919), 289 Ill. 111, 124 N.E. 330; Gray v. Pflanz (1950), 341 Ill.App. 527, 94 N.E.2d 693.) It argues that it was not and could not have been the violation of the parking statute that was a cause of plaintiff's injuries.

We agree that if the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury where the subsequent act is an intervening efficient cause, which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate or immediate cause. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act. Merlo v. Public Service Co. (1943), 381 Ill. 300, 316-318, 45 N.E.2d 665.

However, 'the intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was, itself, probable of foreseeable.' (Johnston v. City of East Moline (1950), 405 Ill. 460, 464, 91 N.E.2d 401, 403.) 'The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party's own negligence,' (Merlo v. Public Service Co., 381 Ill. 300, 317, 45 N.E.2d 665, 675); and, if so, the connection is not broken. McLaughlin v. Alton R. R. (1935), 278 Ill.App. 551, 556.

Wolf Flour's principal contention, that the position of its double parked truck was not a proximate cause or actionable negligence, presents a question of law, which necessarily includes the determination of its claim that the trial court erred in denying its motion for directed verdict and its motion for judgment notwithstanding the verdict for plaintiff; the same rule is used in passing upon both motions.

The question of law presented here is whether, when all the evidence is considered, together with all reasonable inferences therefrom, in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove proximate cause, a necessary element of plaintiff's case. (Finley v. New York Cent. R. R. Co. (1960), 19 Ill.2d 428, 434, 167 N.E.2d 212.) The Appellate Court is precluded from weighing the evidence or determining where its preponderance lies. It should not consider the credibility of witnesses or undertake to reconcile any conflict in the evidence, and it must consider all evidence in the aspect most favorable to plaintiff, together with all inferences that may legitimately be drawn therefrom. (Lessen v. Allison (1960), 25 Ill.App.2d 395, 166 N.E.2d 806.) Therefore, in our examination of the record on the question of proximate cause we have considered the evidence only in its aspects most favorable to plaintiff.

The evidence shows that defendant Toczydlowski, the driver of the automobile, was 18 years old and was familiar with the neighborhood. He knew there were many children in the area; 'They gave Houston Avenue the nickname of 'Incubator Avenue." He was driving south on Houston and saw the double parked truck in front of the bakery, with its left side 3 feet to the right of the center line of Houston. He saw automobiles parked to the right 'of this double parked truck'. When he was about even with the north edge of 88th Street, he started going over to the northbound lane of Houston Avenue. He was half on the west side and half on the east side of the center line of Houston Avenue and looking at the northbound lane. He proceeded along the truck at 10 miles an hour, did not blow his horn, nor did he see a child at any time before the occurrence. When the front of his car was from 3 to 6 feet in front of the truck, he heard a 'sudden thump' on the side of his car. He stopped his car in a distance of approximately 10 feet, facing in a southerly direction. Half of his automobile was still to the left side of the center line of Houston Avenue, and the rear was just about past the front of the truck.

An eyewitness, Mrs. Mary Warmus, was sitting on her front porch at 8810 Houston Avenue. She saw plaintiff standing on the west side of Houston Avenue close to 8808. 'Armida was standing by the lamp post. Then she just ran across the street. * * * When Armida started to cross the street I didn't see any automobiles. I could not see past this truck which was parked out there. I didn't see which way the car was coming.' On cross-examination she testified that plaintiff had to run between automobiles that were parked along the west curb; that defendant Toczydlowski was not 'going real fast' and stopped within 10 to 15 feet, and that plaintiff bumped into the door of the car and was never in front of it. 'After the accident this child was right in the middle of the street, directly off of the post I said was between the two pieces of property.'

Another eyewitness, Reuben Paloma, was standing talking to Mrs. Warmus at 8810. He saw plaintiff when she was walking out of the gangway between 8810 and 8808. She dashed out into the street and 'hit the column of the car where the door opens on a car. It took place between 8808 and 8810 by a light pole. It would be approximately two houses down the street from the bakery.' Prior to seeing her dash out into the street, he saw a truck double parked to the north, in front of the bakery. The person driving the car had come around the truck to get into his proper lane. The witness did not see the vehicle coming around the truck but did see it 'when he was passing it up. This was after he passed the truck. After he passed the truck he turned to the west side of the street.'

On cross-examination he testified that plaintiff was 'at a slow run or trot' and did not stop when she got to the curb. She continued to trot until she hit the car. She was in between two parked cars when he saw the automobile coming, approximately 25 miles an hour. 'He was already just about around the truck * * * coming into his own lane. * * * No part of his car was to the east of the center line. * * * He just rounded the truck and he would be in front of 8806. * * * It was one thing happened right after another. * * * The front of the child came in contact with the column of the car. * * * There were some cars there. They were not close together, about five or six feet apart. * * * This automobile came to a stop about eight or ten feet after the accident.'

A police officer, who lived at 8806 Houston, was working 'underneath the sidewalk' of 8806 and climbed up when he heard a scream. Plaintiff was lying in the street just about in front of the...