Savage v. Martin

628 N.E.2d 606, 256 Ill. App. 3d 272, 195 Ill. Dec. 142, 1993 Ill. App. LEXIS 1788
CourtAppellate Court of Illinois
DecidedDecember 6, 1993
Docket1-90-2827
StatusPublished
Cited by20 cases

This text of 628 N.E.2d 606 (Savage v. Martin) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Savage v. Martin, 628 N.E.2d 606, 256 Ill. App. 3d 272, 195 Ill. Dec. 142, 1993 Ill. App. LEXIS 1788 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal by plaintiff, as mother and next friend of Jeanette M. Savage, from a jury verdict entered in favor of her 10-year-old daughter, Jeanette M. Savage, and an assessment of Jeanette’s contributory negligence at 63%. Plaintiff brought a negligence action against defendant James Martin for injuries Jeanette sustained when her bicycle collided with defendant’s vehicle. At the close of evidence, the court entered a directed verdict on the issue of Jeanette’s contributory negligence. The jury then returned a verdict in favor of Jeanette and against Martin for $80,000, and determined that Jeanette’s contributory negligence accounted for 63% of the fault.

Plaintiff appeals (1) the court’s ruling that Jeanette, 10 years old at the time, was contributorily negligent as a matter of law, (2) evidentiary rulings, and (3) rulings related to the submission of certain jury instructions. For the reasons which follow, we reverse and remand.

About 2 p.m. on June 13, 1982, Jeanette Savage and her friend Sandra Kane rode their bicycles from Jeanette’s home in Chicago headed for Candy Cane Park. Jeanette’s home was two houses south of 103rd Street on the east side of California Avenue. The accident occurred at the intersection of 103rd Street, an east-west street with four lanes, and California Avenue, a north-south street with two traffic lanes. Several persons testified to the occurrence.

Donnette Bruno testified that she was traveling westbound on 103rd Street and stopped at Washtenaw Avenue. Defendant’s vehicle pulled alongside her vehicle in the left lane. When the light turned green, defendant accelerated, screeching his car wheels. Bruno was able to see two girls as she looked westbound on 103rd Street from Washtenaw, which was about two blocks from California. She testified that the girls were standing on the southwest corner of California at 103rd Street. She stated that the traffic light governing 103rd Street had turned from yellow and was turning red. Defendant’s vehicle at that time was about one block ahead of her vehicle. Bruno testified that defendant’s vehicle was close to the intersection when the girls started to cross.

Bruno stated that the two girls were looking across the street with their heads up. She did not see the light when the girls started crossing and could not tell whether they were in the crosswalk and did not remember whether the girls looked to see if there was any traffic coming. However, she did see the orange "Don’t walk” light reflecting on the hood of the traffic light. She testified that the girls then started across the street with their bicycles and defendant’s vehicle hit one of them and swerved, throwing the girl from the vehicle. Bruno stated that she looked at the light at 103rd Street and it was red. She left the scene, then drove back where she saw the victim lying on the curb.

Bruno’s in-court testimony conflicted with her deposition testimony. During her deposition she stated that she did not know what color the light was at 103rd because she was looking at the girls. She also testified during her deposition that the girls placed their heads down and started to walk across the street. On cross-examination she stated that Jeanette glanced westbound on 103rd Street to see if there was traffic coming up the hill and then looked straight.

Sandra Kane testified that about 2 p.m. on June 13, 1982, she and Jeanette were on their way to Candy Cane Park riding their bicycles. They crossed California Avenue and stopped at the southwest corner to cross 103rd Street. The light governing 103rd Street at that time was green. Jeanette stood by Sandra on her bicycle with her feet on the ground. Sandra stated that she stayed on the southwest corner of California and watched the light that governed California and that light was red. Jeanette watched the light that governed 103rd Street which overhung on the eastbound lane of 103rd Street. She stated that when Jeanette stepped off the curb, the light governing eastbound traffic turned from green to yellow. Sandra did not recall in which direction Jeanette looked before stepping off the curb. Sandra testified that Jeanette started slowly pedaling and was about midway across the eastbound lanes when the light for California turned green. She stated that Jeanette was outside the crosswalk when she began to cross the street, and that Jeanette turned the bicycle west along the curb and was hit by defendant’s vehicle. Sandra testified that she did not see defendant’s vehicle before it hit Jeanette and that defendant applied his brakes, turned east and ended several feet west of the crosswalk. Sandra testified she did not know what color the light was for westbound traffic on 103rd Street when defendant’s vehicle entered the intersection.

In her deposition testimony, Sandra testified that she did not see Jeanette look for traffic in either direction on 103rd Street before she crossed the eastbound lanes. However, at trial she stated that she did not remember making that statement. On cross-examination she stated that Jeanette glanced west to see if there was any traffic coming up the hill, then looked straight. She also testified that Jeanette’s bicycle came into contact with defendant’s vehicle, and that she did not know what color the light was when defendant’s vehicle entered the intersection.

Margaret Savage, Jeanette’s mother, testified that on the afternoon of the incident her daughter and a girl friend were riding their bicycles. She heard an impact and screeching tires then ran to the site of the accident at 103rd Street. Margaret saw Jeanette lying on the street with blood coming from a wound. Margaret asked Jeanette various questions which she did not respond to. A pediatrician came to the scene and assisted Jeanette by applying pressure to the head wound. Margaret stated that the ambulance arrived about 20 minutes later.

Margaret stated that she saw defendant and a passenger at the scene. Defendant’s car was facing east, and skid marks were on the street. Margaret testified that Jeanette was taken to Little Company of Mary Hospital. She suffered abrasions on her feet, hands, arms and legs. She had a scalp wound and her hair was filled with blood. Jeanette was placed on a respirator and hospitalized for six days. After her release from the hospital, Jeanette experienced periods of dizziness and headaches. Her neurosurgeon, Dr. Amine, limited her swimming, biking, and roller skating for six months. She gradually returned to her normal activities.

In 1983, Margaret took Jeanette to Drs. Brophy and Andricauco for problems related to her head. Margaret stated that Jeanette was having headaches, sleeping long periods and having behavioral problems. Emotionally she would seem to get out of control. Dr. Brophy referred Jeanette to Dr. Huttenlocher, who conducted a neurological examination, ordered an EEC and a brain wave examination. Dr. Brophy advised Margaret that the results of Dr. Huttenlocher’s exams were normal.

In 1986, Dr. Speigel also examined Jeanette at the request of defendant’s attorney. Speigel conducted a neurological examination also. He did not treat Jeanette for her symptoms nor did he conduct any further examinations. Jeanette continued to experience problems and was admitted to Christ Hospital in 1987. She was examined by Dr.

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Bluebook (online)
628 N.E.2d 606, 256 Ill. App. 3d 272, 195 Ill. Dec. 142, 1993 Ill. App. LEXIS 1788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savage-v-martin-illappct-1993.