Mort v. Walter, 57539

CourtSupreme Court of Illinois
Citation457 N.E.2d 18,75 Ill.Dec. 228,98 Ill.2d 391
Docket NumberNo. 57539,57539
Parties, 75 Ill.Dec. 228 Kevin MORT, Appellant, v. Alice I. WALTER, Appellee.
Decision Date21 October 1983

Page 18

457 N.E.2d 18
98 Ill.2d 391, 75 Ill.Dec. 228
Kevin MORT, Appellant,
v.
Alice I. WALTER, Appellee.
No. 57539.
Supreme Court of Illinois.
Oct. 21, 1983.

[98 Ill.2d 392]

Page 19

[75 Ill.Dec. 229] Edward W. Huntley, Gillespie, Cadigan & Gillespie, Springfield, for appellee.

Harold O. Werner and Pree & Pree, Springfield, for appellant.

UNDERWOOD, Justice:

In this personal injury action the circuit court of Sangamon County directed a verdict in favor of defendant, Alice I. Walter. A divided appellate court affirmed in a Rule 23 order (109 Ill.App.3d 1221, 71 Ill.Dec. 890, 451 N.E.2d 1044), and plaintiff, Kevin Mort, a minor represented by his father and next friend, William Mort, was granted leave to appeal to this court.

The facts concerning the accident which resulted in plaintiff's serious personal injuries are essentially undisputed. On June 15, 1978, plaintiff, who was four years [98 Ill.2d 393] old, lived with his family in a farmhouse located on the north side of Old Jacksonville Road, approximately seven miles west of Springfield. At about 5:30 p.m., he went with his father to collect the mail. The mailbox was located on the south side of the road almost

Page 20

[75 Ill.Dec. 230] directly opposite the point where the Morts' driveway joined the road at right angles. William Mort stationed plaintiff approximately four feet away from the road on the blacktop apron which connected the gravel driveway and the road, and instructed him to stay there. Then, after checking to be sure that there was no traffic, the father crossed over to the mailbox, glancing back when he was in the middle of the road to make sure that plaintiff was obeying his instruction. Mr. Mort testified that, upon reaching the mailbox, his attention was focused upon sorting through his mail and that he had his back turned toward plaintiff. Although he had not heard any cars approaching or passing him, when he turned away from the mailbox, he saw plaintiff lying near the spot where he had been standing and defendant's westbound car was approximately 50 feet to the west of plaintiff. It was later determined that plaintiff had come into contact with the right rear side of defendant's car, incurring a compound fracture of his left leg as well as serious internal injuries requiring the removal of his spleen and a portion of one rib.

The testimony indicated that weather conditions at the time of the accident were clear and dry. It was also undisputed that the Mort residence was located on a slightly descending straight section of road and that there were no trees, bushes, crops or other obstructions which would affect a westbound driver's view of the Mort driveway apron. The nearest curve which westbound traffic had to negotiate before passing in front of the Mort residence was approximately one-fifth of a mile to the east. At the scene of the accident, Old Jacksonville[98 Ill.2d 394] Road was a 22-foot-wide blacktop road with one lane for driving in each direction. The roadway was bounded by low-lying shoulders of gravel and grass, which were flanked by shallow ditches.

Defendant was called by plaintiff to testify as an adverse witness, and stated that she had driven along the Old Jacksonville Road daily for five or six years prior to the accident and was traveling at 55 miles per hour when she passed the Mort residence on this occasion. Defendant also testified that she had seen William Mort standing at the mailbox but had not seen plaintiff. When asked where she was looking, she replied: "Straight ahead. I was watching the road and the man at the mailbox because I thought maybe he would dart back across." According to defendant, the first indication that she had of plaintiff's presence was when she heard a "thump" at the rear of her car on the right-hand side.

Two passengers were riding with defendant at the time of the accident, but only one of them testified at trial. The trial judge allowed defendant to elicit testimony from Catherine Workman before plaintiff rested, as a matter of convenience to the witness. Mrs. Workman, who was riding in the back seat behind defendant stated that she was reading a book but had looked up as the car passed through the curve and entered the straight section of road which passed in front of the Mort residence. She stated that she saw a man standing by a mailbox and that she then resumed reading until she heard a noise at the rear of the car. Mrs. Workman corroborated defendant's statement as to her speed, estimating that the car was traveling around 55 miles per hour, and she additionally testified that the car had not changed direction or left the roadway at the time of the accident. Plaintiff also introduced photographs depicting the scene of the accident and defendant's car.

In his complaint, plaintiff alleged that defendant was [98 Ill.2d 395] negligent in failing to observe the roadway in front of her car, failing to keep the car under control, failing to keep a proper lookout for children and pedestrians along the road, failing to decrease speed to avoid colliding with persons along the road, and in failing to stop or decrease speed to avoid hitting the plaintiff despite ample time and opportunity to do so. He also alleged that he was too young to have exercised care in his own behalf. Defendant did not dispute plaintiff's denial of contributory negligence and, in any event, we note that it is conclusively

Page 21

[75 Ill.Dec. 231] presumed that a child not yet seven years of...

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  • Lowe v. Norfolk and Western Ry. Co., L-810
    • United States
    • United States Appellate Court of Illinois
    • April 19, 1984
    ...Instead, circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom." Mort v. Walker (1983), 98 Ill.2d 391, 396, 75 Ill.Dec. 228, 231, 457 N.E.2d 18, Numerous other objections are made on appeal to the question, but it would only further burden an already l......
  • Gillenwater v. Honeywell Int'l, Inc.
    • United States
    • United States Appellate Court of Illinois
    • September 18, 2013
    ...as the fact finder could find a preponderance of the evidence despite the possibility of an innocent explanation (see Mort v. Walter, 98 Ill.2d 391, 396, 75 Ill.Dec. 228, 457 N.E.2d 18 (1983)), there would be no real distinction between clear and convincing evidence and a preponderance of t......
  • Darrough v. Glendale Heights Community Hosp., 2-91-1390
    • United States
    • United States Appellate Court of Illinois
    • September 29, 1992
    ...Cos. (1981), 92 Ill.App.3d 813, 48 Ill.Dec. 297, 416 N.E.2d 328.) However, Kellman is in direct conflict with Mort v. Walter, (1983), 98 Ill.2d 391, 75 Ill.Dec. 228, 457 N.E.2d 18, on which it relied and which held that "the use of circumstantial evidence is not limited to those instances i......
  • Foley v. Builtech Constr., Inc., 1-18-0941
    • United States
    • United States Appellate Court of Illinois
    • July 23, 2019
    ...to establish proximate cause to overcome summary judgment, as long as the inference may reasonably be drawn. Id. (citing Mort v. Walter , 98 Ill. 2d 391, 396-97, 75 Ill.Dec. 228, 457 N.E.2d 18 (1983) ).¶ 71 Consider Nowak , 296 Ill. App. 3d 886, 231 Ill.Dec. 15, 695 N.E.2d 532. The plaintif......
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