Varacalli v. Russell , 67 Ill. App. 3d 988 ( 1978 )

Mr. JUSTICE JONES

delivered the opinion of the court:

Frederick Russell, defendant in this cause, appeals from an order of the circuit court of Williamson County granting the plaintiff, Nick Varacalli, a new trial in a personal injury action after the jury had returned a verdict in favor of Russell. This action arose out of personal injuries sustained by Varacalli after being struck by an automobile. At the time of the accident, Varacalli was nine years old, but he was no longer a minor when the case was finally brought to trial, and the complaint was amended to reflect this fact. After a verdict was rendered in favor of Russell, Varacalli filed a post-trial motion seeking a new trial on several grounds, one of which was that the trial court had improperly instructed the jury as to Varacalli’s standard of care with respect to contributory negligence. Accepting Varacalli’s contention, the trial court granted him a new trial. The sole issue on appeal is whether or not the trial court erred in granting the new trial on the basis of the written instructions submitted to the jury.

Specifically, Varacalli objected to the trial court’s acceptance of Defendant’s Instruction No. 6 and its rejection of Plaintiff’s Instruction Nos. 10 and 11. Defendant’s Instruction No. 6, Illinois Pattern Jury Instruction, Civil, No. 21.02 (2d ed. 1971) (hereinafter IPI), stated:

“The plaintiff has the burden of proving each of the following propositions:

First, that the plaintiff before and at the time of the occurrence was using ordinary care for his own safety;

Second, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;

Third, that the plaintiff was injured;

Fourth, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. But, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.”

PlaintifFs Instruction No. 11, modified IPI Civil No. 20.02, which was refused, is as follows:

“The plaintiff, Nick Varacalli, has the burden of proving each of the following propositions:

First, that the plaintiff, Nick Varacalli, before and at the time of the occurrence was using ordinary care for a child of his age, capacity, intelligence and experience for his own safety;

Second, that the defendant, Frederick Russell, acted or failed to act in one of the ways claimed by the plaintiff, Nick Varacalli, as stated to you in these instructions, and that in so acting or failing to act, the defendant, Frederick Russell, was negligent.

Third, that the plaintiff, Nick Varacalli, was injured.

Fourth, that the negligence of the defendant, Frederick Russell, was a proximate cause of the injuries to the plaintiff, Nick Varacalli. -

If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff, Nick Varacalli, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant, Frederick Russell.”

Plaintiff’s Instruction No. 10, modified IPI Civil No. 20.01, which was also refused, is as follows:

“The plaintiff, Nick Varacalli, claims he was injured and sustained damage while exercising ordinary care for a child of his age, capacity, intelligence and experience, and that the defendant, Frederick Russell, was negligent in one or more of the following respects:

Drove his vehicle at a rate of speed which was greater than was reasonable and proper with regard to traffic conditions and use of the highway or endangered the safety of any person or property; Failed to sound his horn when it was reasonably necessary to do so. Failed to reduce the speed of his vehicle when a special hazard existed with respect to other traffic upon the highway;

Failed to apply his brakes when it was reasonably necessary to do so.

The plaintiff, Nick Varacalli, further claims that one or more of the foregoing was a proximate cause of his injuries. The defendant, Frederick Russell, denies that he did any of the things claimed by the plaintiff, Nick Varacalli, denies that he was negligent, denies that any claimed act or omission on the part of the defendant, Frederick Russell, was a proximate cause of the claimed injuries and denies that the plaintiff, Nick Varacalli, was in the exercise of ordinary care for a child of his age, capacity, intelligence and experience.

The defendant, Frederick Russell, further denies that plaintiff, Nick Varacalli, was injured or sustained damages to the extent claimed.”

The jury was given an additional instruction relevant to this issue. Plaintiff’s Instruction No. 18, IPI Civil No. 20.01, stated:

“The plaintiff, Nick Varacalli, claims he was injured and sustained damage while exercising ordinary care, and that the defendant, Frederick Russell, was negligent in one or more of the following respects:

Drove his vehicle at a rate of speed which was greater than was reasonable and proper with regard to traffic conditions and use of the highway or endangered the safety of any person or property; Failed to sound his horn when it was reasonably necessary to do so. Failed to reduce the speed of his vehicle when a special hazard existed with respect to other traffic upon the highway;

Failed to apply his brakes when it was reasonably necessary to do so.

The plaintiff, Nick Varacalli, further claims that one or more of the foregoing was a proximate cause of his injuries. The defendant, Frederick Russell, denies that he did any of the things claimed by the plaintiff, Nick Varacalli, denies that he was negligent, denies that any claimed act or omission on the part of the defendant, Frederick Russell, was a proximate cause of the claimed injuries and denies that the plaintiff, Nick Varacalli, was in the exercise of ordinary care.

The defendant, Frederick Russell, further denies that plaintiff, Nick Varacalli, was injured or sustained damages to the extent claimed.”

The only substantive difference between,Instructions Nos. 6 and 18 which were given and Instructions Nos. 10 and 11 which were refused is that the standard of care in the former was “ordinary care for his own safety,” while the standard of care in the latter was “ordinary care for a child of his age, capacity, intelligence and experience for his own safety.” However, Plaintiff’s Instruction No. 7, IPI Civil No. 10.05, was given to the jury and defined the term “ordinary care” as used in all other instructions as follows:

“A minor is not held to the same standard of conduct as an adult. When I use the words “ordinary care” with respect to the plaintiff, Nick Varacalli, I mean that degree of care which a reasonably careful child of the age, mental capacity and experience of the plaintiff, Nick Varacalli, would use under the circumstances similar to those shown by the evidence. The law does not say how such a child would act under those circumstances. That is for you to decide.”

The theory behind Varacalli’s objection to Defendant’s Instruction No. 6 was that it was an incomplete statement of the law since it did not reflect the difference in the standard of care to which a child is held in relation to the standard of care for an adult. Moreover, he contends that the defect in this instruction was not corrected by Plaintiff’s Instruction No. 7 which defined the words “ordinary care” as they applied to a child, because Defendant’s Instruction No. 6 was a peremptory instruction, and as such, its failure to completely state the law could not have been cured by other definitional instructions. We disagree.

It is a well-established principle in Illinois that in tort cases the standard of care applied to a child is different than the standard of care applied to an adult. Consequently, jury instructions must reflect this deviation. In determining whether a minor has been contributorily negligent, IPI Civil No. 10.05, which was given to the jury as Plaintiff’s Instruction No. 7 in the case at bar, has been held to adequately reflect the standard of care upon which he is judged. (Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128.) Therefore, it is apparent that the jury was adequately apprised, through Plaintiff’s Instruction No. 7, of the proper standard with which to judge Varacalli’s actions.

We find it of no consequence that the standard was furnished through a separate definitional instruction, rather than in the instruction which set out plaintiff’s burden of proof (Defendant’s Instruction No. 6). “It is the overwhelming authority in this State that jury instructions are to be considered as a whole and read together to determine whether they fairly and accurately state the law. [Citations.]” (Palausky v. Landers, (5th Dist. No. 77-569, filed December 26, 1978); Krause v. Henker (1st Dist. 1972), 5 Ill. App. 3d 736, 284 N.E.2d 300.) We hold that Defendant’s Instruction No. 6 and Plaintiff’s Instruction No. 7, when read in conjunction with each other, presented an accurate statement of the law as it pertained to the contributory negligence of a child. Accordingly, the trial court erred in granting Varacalli a new trial.

We think it worth noting that the instructions that were given by the court were IPI instructions whereas the instructions tendered by the plaintiff and refused by the court were non-IPI instructions.

Reversed.

KARNS, J., concurs.