Wolpert v. Heidbreder

• Decision Date: 15 May 1959
• Docket Number: Gen. No. 10204
• Citation: 21 Ill.App.2d 486,158 N.E.2d 421
• Parties: LarryLee WOLPERT by Marion C. Wolpert, his next friend, and Marion C. Wolpert, individually, Plaintiffs-Appellants, v. John Vernon HEIDBREDER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 421

158 N.E.2d 421

21 Ill.App.2d 486

LarryLee WOLPERT by Marion C. Wolpert, his next friend, and Marion C. Wolpert, individually, Plaintiffs-Appellants, v. John Vernon HEIDBREDER, Defendant-Appellee.

Gen. No. 10204.

Appellate Court of Illinois, Third District.

May 15, 1959.

Luther Dearborn, Lincoln, Robert H. Brunsman, Springfield, for appellants.

Gillespie, Burke & Gillespie, Springfield. George B. Gillespie and Frederick H. Stone, Springfield, of counsel, for appellee.

CARROLL, Justice.

Plaintiffs appeal from a judgment on a not guilty verdict in a personal injury action. Recovery is sought by LarryLee Wolpert, a minor (whom we will refer to as the plaintiff) for injuries allegedly caused by defendant's negligence in operating a Chevrolet pick-up truck and for medical and hospital expenses incurred in treating said injuries by plaintiff's father, Marion C. Wolpert.

At the time he was injured, plaintiff was 6 years of age and lived with his parents whose home was located on the North side of Fifth Street in Lincoln, Illinois. Fifth Street runs East and West. The Wolpert home is the third house West of Walnut Street, which runs North and South and intersects Fifth Street. Proceeding West from the Wolpert home, Fifth Street is intersected by Pine, Elm and Mill Streets in the order named, each making a 'T' intersection with Fifth Street. The next street West of Mill Street is College Street which crosses Fifth Steet. On the afternoon of February 21, 1955, after returning from school, plaintiff went to purchase some candy at a store on Fourth Street which was one block South of Fifth Street and two blocks West of the Wolpert home. In returning from the store, he walked two blocks East on Fourth Street to Pine Street and then to a point on the South side of Fifth Street opposite the Wolpert home where he stopped. He looked both ways and saw a car coming from the West. He waited until the car passed and reached Walnut Street. He then again looked both ways and started to cross Fifth Street on an angle in the direction of his home. As he was near the center line of the street, he was struck by a truck driven by defendant and sustained serious injuries.

The plaintiff contends that the trial court erred in instructing the jury, in ruling upon the admission of certain evidence and exhibits relating thereto and that the verdict is contrary to the manifest weight of the evidence.

Plaintiff complains of the giving of defendant's Instruction 8, which is as follows:

'It is not every accident that makes the operator of a motor vehicle liable. If the operator of a motor vehicle is in the exercise of that degree of care and caution as a reasonable prudent person would exercise under like or similar circumstances and an accident nonetheless occurs, then such an accident is what would be termed as unavoidable accident and the person is not liable for an accident which is unavoidable within the definition contained in this instruction.'

This instruction should not have been given unless there was some evidence that plaintiff was injured through accident alone not coupled with negligence. Streeter v Humrichouse, 357 Ill. 234, 191 N.E. 684; Crutchfield v. Meyer, 414 Ill. 210, 111 N.E.2d 142; Williams v. Matlin, 328 Ill.App. 645, 66 N.E.2d 719. The evidence shows the accident occurred at about 3:45 o'clock in the afternoon; that the sun was shining and visibility good; that Fifth Street is 30 feet wide; and in the accident scene area, runs through a built-up residential portion of the City; that plaintiff stood at the curb on the South side of Fifth Street; that he looked both ways and saw a car coming from the West which was then West of Pine Street; that he waited until this car passed him and reached Walnut Street; that he then again looked both ways and seeing no cars approaching started to cross the street at a trot. Velma Coonce, a disinterested witness, testified that at the time of the occurrence, she was walking West on the South side of Fifth Street; that she saw plaintiff walking East on the South side of Fifth Street; that he went down to cross the street and stood at the curb; that she saw him look to the West; that she was him wait until a car coming from the West reached Walnut Street; that plaintiff watched said car as it went East; that he then started across the street walking fast which the witness described as being a 'trot' on an angle towards his home; that when he was about in front of the house immediately West of his home and on the North side of Fifth Street near its center line, he was hit by the defendant's truck. This witness gave an opinion that when the truck struck plaintiff, it was going 40 miles per hour. She also testified she heard no horn or indication of application of brakes and that after the impact the truck went forward about 50 feet.

The defendant testified that he was 16 years of age at the time of the accident; that he was driving a Chevrolet truck which he had driven since June, 1954 when he received his driver's license; that he was returning from school and was accompanied by Kenneth Paulsen and Russell Farmer; that he was driving between 20 and 25 miles per hour; that the accident happened a little West of the Wolpert house; that he saw a car coming from the West; that he first saw this West bound car at Pine Street; that only a split second intervened between the time the car going East passed the truck and the collision with plaintiff; that he did not see plaintiff prior to the accident nor did he know of the accident until he felt a thud on the left rear wheel; that he looked in the rear view mirror and saw plaintiff lying in the street; that he immediately applied his brakes; that the truck came to a stop 50 feet from where he felt the thud; that there were no cars parked on Fifth Street in the vicinity of the accident and no other moving traffic except the single East bound car; that he first saw the East bound car when it was on Pine Street and the truck was then about to enter Walnut Street; that immediately prior to the accident he was looking straight ahead and was watching the road ahead at the time of the thud. Russell Farmer, who was riding with defendant, saw a car coming from the West which passed the truck; that the accident happened a second after the East bound car passed; that he did not see plaintiff before the accident and that the truck was going 20 to 25 miles per hour when it came in contact with plaintiff. Kenneth Paulsen, who was seated between defendant and Farmer, testified that a fraction of a second before the accident, he saw the top of plaintiff's head at the left front door of the truck; that he felt a thud and immediately thereafter defendant applied his brakes and that he felt the thud on the back fender. This witness also testified to seeing the East bound car and that 5 or 10 seconds after it passed the truck the accident occurred.

Photographs introduced in evidence show an unobstructed view of the spot where plaintiff was standing for a distance of 390 feet on Fifth Street.

Thus the uncontroverted evidence is that the plaintiff was standing at the curb waiting to cross Fifth Street in plain view of defendant when the latter saw the oncoming car at Pine Street; that plaintiff remained at the curb until the East bound car reached Pine Street. The evidence further shows that defendant's view of the street where plaintiff stood was unobstructed during all the time required for the East bound car to travel the block between Pine and Walnut Streets. The failure of defendant to see plaintiff before the other car passed his truck is unexplained in the evidence. This absence of any reasonable explanation of defendant's failure to see that which the evidence shows was clearly visible to him compels the conclusion that he failed to keep a proper lookout. Accordingly, it cannot be said there was any evidence that plaintiff's injury was the result of accident alone and under authority of Streeter v. Humrichouse, supra, it was error to give this instruction.

In defendant the giving of such instruction, defendant relies principally upon the well...