Scarlette v. Hummer

• Decision Date: 06 May 1963
• Docket Number: Gen. No. 11671
• Citation: 190 N.E.2d 370,41 Ill.App.2d 138
• Parties: Philipp L. SCARLETTE, a minor, by Philipp Scarlette, his father and next friend, and Philipp Scarlette, Individually, Appellants, v. Barbara HUMMER, Appellee.
• Court: United States Appellate Court of Illinois

Page 370

190 N.E.2d 370

41 Ill.App.2d 138

Philipp L. SCARLETTE, a minor, by Philipp Scarlette, his father and next friend, and Philipp Scarlette, Individually, Appellants, v. Barbara HUMMER, Appellee.

Gen. No. 11671.

Appellate Court of Illinois, Second District, Second Division.

May 6, 1963.

Lidschin & Pucin, Waukegan, for appellants.

Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, for appellee.

WRIGHT, Presiding Justice.

This is an action brought to recover damages for personal injuries occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, Barbara Hummer, in driving her automobile and striking the plaintiff, Philipp L. Scarlette, a pedestrian.

Plaintiff's complaint consisted of four counts. Count I and II charged the defendant with negligence. Counts III and IV charged the defendant with wilful and wanton misconduct. The case was tried before a jury in the Circuit Court of Lake County and at the conclusion of all the evidence, the trial court granted defendant's motion for a directed verdict as to Counts III and IV. Counts I and II were submitted to the jury which returned a verdict finding the issues in favor of the defendant. The trial court entered judgment on the verdict and denied plaintiff's post-trial motion for a new trial. This appeal follows.

The accident occurred on November 30, 1960, a short time after 11:30 o'clock A.M. The weather was cold and cloudy but the street was dry. The plaintiff, 10 years of age, was a fifth grade student at the Clearview Grade School in Waukegan, Illinois. The Clearview School is located on Delaware Road in a residential district. Delaware Road runs north and south and some distance north of the school, it runs into Sunset Road, which is an east-west street. The plaintiff left his school at 11:30 in the morning with Thomas Stephens, another student, to go with him to the Stephens' residence on Sunset Road for lunch. As the two boys walked north on the sidewalk on the east side of Delaware Road towards Sunset Road, they were joined by two other schoolmates, Gary Wright and David Richard Wright.

The four young boys continued north on Delaware to Sunset Road where they turned east on the south sidewalk and followed the sidewalk some 50 feet to a point where the sidewalk came to an end. They then continued on the south side of Sunset Road until they came to a driveway where they played in the snow and threw snowballs for a short time and then proceeded to start across Sunset Road toward the Stephens' residence where the plaintiff and Thomas Stephens were expected for lunch.

Thomas Stephens crossed Sunset Road first and then the plaintiff who was wearing a hooded jacket with the hood pulled over his head started to cross the street and was struck by a Ford automobile being driven in an easterly direction on Sunset Road by the defendant.

The plaintiff testified that before he started to cross the street he looked both ways and could see on his left to Delaware Road; that he started to cross the street and got to the middle of the street, and after that only remembers that he was lying on the pavement and a policeman was standing over him. He did not testify whether or not he ever saw defendant's automobile.

The defendant was employed at the Oakdale School as a second grade teacher and had left the school a few minutes after 11:30 o'clock A.M. She drove her automobile south on McAree Road and made a left turn on Sunset Road and then proceeded east. As she approached the children's playground on Sunset Road near Delaware Road, she drove past a road sign which stated 'Speed limit--25' and also, a sign which stated 'Children's Playground' and the sign contained a picture of a child running; when she had passed three quarters of the playground she saw the boys on the south side of the road. Defendant further testified that as she proceeded east on Sunset Road her speed was about 25 miles per hour and when she first saw the boys playing on the south side of the road, she took her foot off the gas pedal. She further testified that she proceeded on east and that it seemed like all of a sudden the plaintiff jumped right out in front of her; that when the plaintiff ran onto the road that her speed was about 20 miles per hour and that she applied her brakes and tried to turn the wheel to the left.

Albert Willis, a foreman of the Illinois Hydraulic Construction Company, testified that he was working near the scene of the accident and was flagging traffic at a quarter to 12:00 o'clock on that morning and that he noticed a Ford automobile proceeding east on Sunset. At the time he first noticed the car, it was about 150 feet away and he estimated the speed to be about 20 miles per hour; that he noticed children playing on the south side of the road; that he saw one boy run up through the ditch over the hill and he was leaning forward and his head was down; that he had on a heavy coat with a hooded top up around his face and at that time the eastbound car was approximately 100 feet from where he was standing. He further testified that the car slowed down some, to approximately 15 miles per hour, and at that time he looked toward the truck driver who was flagging traffic on the other end of the job and that the next thing he noticed the boy had been hit and the car had been stopped on an angle toward the north side of the road with its front wheels on the center line.

Neither the plaintiff nor his three companions testified concerning the speed of defendant's automobile.

The Waukegan Police...