Moser v. East St. Louis & Interurban Water Co. , 326 Ill. App. 542 ( 1945 )

Mr. Justice Bartley

delivered the opinion of the court.

This is a suit for damages arising out of a claim of Willard Moser, Jr., plaintiff appellee (hereinafter designated as plaintiff), a minor of the age of 12 years, for personal injuries sustained by him, by reason of being hit by a truck driven by William Petzgoldt, defendant appellant (hereinafter designated as defendant), on the evening of July 6, 1938, on North Twenty-eighth street, in the City of Belleville, Illinois, after appellee ran into the street while playing a game with other children. A trial by jury resulted in a verdict of $7,500 in favor of the plaintiff.

The complaint of plaintiff consisted of two counts. The first count included as defendant the East St. Louis and Interurban Water Company, a corporation, as the alleged employer of the codefendant, William Petzgoldt. At the close of all of the evidence on the part of the plaintiff, the court allowed a motion of the defendant Water Company for a directed verdict, as to it, and no question is before the court as to this action.

The defendants filed separate answers to the complaint denying the material allegations thereof, which included a denial of the allegation that the plaintiff, at the time of the injury, was in the exercise of due care and caution for his own safety.

A trial'by jury resulted in a verdict of $7,500 in favor of the plaintiff. A motion for new trial was duly filed and argued, and the motion was overruled. A motion for judgment notwithstanding the verdict was filed, argued, and overruled, and judgment rendered on the verdict for $7,500.

The only errors presented and argued by the defendant are that the plaintiff failed to prove that he was in the exercise of due care and caution for his own safety, and that the court erred in denying the defendant’s motion for a directed verdict in his favor at the close of the plaintiff’s case and at the close of all of the evidence, because it is said that as a matter of law, the plaintiff was not in the exercise of due care and caution for his own safety, as shown by the record. It thus appears from the issues as presented to this court, that the negligence of the defendant is admitted, that the negligence was the proximate cause of the injury is admitted, as is also the resulting damage, and that the amount awarded by the jury is within the range of the testimony. The only question, therefore,, before the court is whether the record fails to show that the plaintiff was in the exercise of due care and caution for his own safety.

The occurrence in question took place on North Twenty-eighth street in Belleville. This street runs north and south and is 24 feet wide from curb to curb. It was still daylight and plaintiff, with other children, was playing a game known as “5-10,” which is rather vaguely described as being played as follows: “five-ten, no stop, no pushing, no running, red light halt, no steps.”

The defendant was driving the truck in question in a southerly direction along the street in question and where the plaintiff and other children were playing about the sidewalk and in the front yards adjoining. In the same neighborhood, on the other side of the street, were three little girls sitting on the curb with their feet in the street, and it was because of this that the defendant says that he was driving in what he describes as the center lane of the 24-foot wide street. Plaintiff’s testimony is to the effect that he took two steps from the grass and stopped about 4 feet from the east curb out in the street; that he looked to the south and saw no cars and then looked north, and in about a minute, saw a truck coming toward him about 60 feet away, and the next thing that he knew, he was struck without ever having moved from where he was standing. Defendant testified that he was driving a 1½-ton truck, Chevrolet model; that riding in the seat of the truck with him were his daughter and two grandchildren; that he was driving between 12 and 15 miles per hour; that he saw one boy run south and one run north, and still another (the plaintiff) run west with his head down, into the side of his truck, and that he immediately applied his brakes and stopped his truck in about 3 or 4 feet.

As a result of the occurrence, plaintiff received a compound fracture of the lower left leg at the junction of the lower third with the middle third, with both bones broken and protruding through the skin, and extensive injury to the lower left leg and foot, which involved the soft tissues, which were mashed and severely damaged about the bone. Plaintiff was in the hospital from July 6 to September 10, 1938. The union of the fracture was good, although he has a slight limp and a slight shortening of his leg. There was considerable sloughing of the soft tissues of the ankle and of the heel and skin grafting was resorted to to cover the bare spot on the ankle where the skin had sloughed off down to the tendons. Hospital and doctors’ bills amounted to $3,775.

The evidence is in dispute as to whether plaintiff ran into the defendant’s truck, or whether the defendant’s truck ran into the plaintiff. It is also in disagreement whether the truck veered to the left and how far distant the truck was traveling west of the east curb line, and how far west of the east curb line the truck was when it stopped. There is no dispute but what the truck was traveling at least to the extent of one half of its width east of the center line of the 24-foot street. The skid marks showed 17 inches on the pavement, and according to the testimony of the defendant, he skidded nearly all of the rubber off of his tires and almost ruined one of them.

As before stated, the plaintiff, at the time of the occurrence, was 12 years of age. He had reached the 6th grade in school, and had lived in the neighborhood for about two years.

As to the accountability of children for contributory negligence, Illinois, follows the common-law rule that a child under the age of 7 years is conclusively presumed not to be responsible for his acts. Between the ages of 7 and 14, he is still so presumed to be, but this presumption might be overcome by proof of the intelligence and capacity of the child. (Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482.) When proof is made of the age, capacity intelligence and experience of the child between the ages of 7 and 14, the question of contributory negligence then becomes one of fact, Which must be submitted to the jury to determine, taking into consideration the age, capacity, intelligence, and experience of the child. (Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142.)

In the case of Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142, commencing on page 149, the court said:

“Appellant’s third point is, that there is no evidence in the record tending to show that appellee was in the exercise of ordinary care for his own safety at and immediately prior to the time of the happening of the accident in question, and that his injury is due wholly to his own negligence. This court has definitely decided that a child under the age of- seven years is incapable of such conduct as will constitute contributory negligence; (McDonald v. City of Spring Valley, supra [258 Ill. 52]; Richardson v. Nelson, 221 Ill. 254; Chicago, St. Louis and Pittsburg Railroad Co. v. Welsh, 118 id. 572;) and the same rule is followed by other courts. (McEldon v. Drew, 138 Iowa, 390, 116 N. W. 147.) We have also held that when a child has attained the age of fourteen years there is no reason to excuse him from the same degree of care for his own safety which is required of an adult. (Austin v. Public Service Co., 299 Ill. 112; Walldren Express Co. v. Krug, 291 id. 472; Chicago and Alton Railroad Co. v. Becher, 76 id. 25.) These rules established by the courts are derived from the common law rule which applies in criminal cases. Since, in reason, responsibility for one’s acts depends upon the understanding rather than the age, there can be no fixed rule of age which will operate justly in every case, but, as is said by Bishop concerning the rule as applied to criminal conduct, ‘An imperfect rule is practically better than none.’ Therefore, while there has been some slight deviation in a féw cases in the application of the rule by this court, it is fairly well established by this court and courts of other jurisdictions that a child under seven years of age is conclusively presumed incapable of contributory negligence, and that in the case of m child above the age of fourteen years the same rule shall he applied to him in that regard as is applied to adults, his intelligence and experience being considered. The law is clearly established by great weight of authority that between the ages of seven and fourteen the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child. (Chicago and Alton Railroad Co. v. Becker, supra; Lake Erie and Western Railroad Co. v. Klinkrath, 227 Ill. 439; City of Pekin v. McMahon, 154 id. 141; Rockford, Rock Island and St. Louis Railroad Co. v. Delaney, 82 id. 198; McEldon v. Drew, supra; Lake Erie and Western Railroad Co. v. Mackey, 53 Ohio St. 370, 41 N. E. 980; City of Shawnee v. Cheek, 40 Okla. 227, 137 Pac. 724; Hepfel v. St. Paul, Minneapolis and Manitoba Railway Co., 49 Minn. 263, 51 N. W. 1049.) The question whether appellee was, under the circumstances, in the exercise of ordinary care for his own safety at and immediately prior to the time of the happening of the accident in question was properly submitted to the jury. Union Pacific Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592; Lorence v. City of Ellensburgh, 13 Wash. 341, 43 Pac. 20.”

In the case of Deming v. City of Chicago, 321 Ill. 341, the court, commencing on page 343, said:

“Plaintiff in error says that ‘contributory negligence is the outstanding feature of this case.’ The law is clearly established by great weight of authority that the question of culpability of a child between the ages of seven and fourteen is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.”

From the foregoing decisions of the Illinois Supreme Court, it is clear that the question of whether the plaintiff was in the exercise of ordinary care was properly submitted by the court below to the jury for its consideration, and the question having been passed upon by the jury under the instructions of the court as to the law, this court would not be warranted in substituting its judgment unless it could say, as a question of fact, that rational persons would not differ on the question. (Glassman v. Keller, 291 Ill. App. 262; Schwanz v. Sangamo Electric Co., 294 Ill. App. 395; Kelly v. Chicago City Ry. Co., 283 Ill. 640.)

From a careful reading of all of the evidence in the case, we cannot say that the finding of the jury was unreasonable, or that the evidence does not support the finding of the jury that the plaintiff was in the exercise of due care and caution for his own safety, taking into consideration his age, capacity, intelligence and experience. The jury was fully and adequately instructed as to the law on the degree of care required on the part of the plaintiff, and the trial court has approved the action of the jury in finding the defendant guilty. The judgment of the circuit court will therefore be affirmed.

Affirmed.