Walls v. Hofbauer

Citations: 359 N.E.2d 1037; 45 Ill. App. 3d 394; 4 Ill. Dec. 85; 1977 Ill. App. LEXIS 2089Docket: 61844

Court: Appellate Court of Illinois; January 19, 1977; Illinois; State Appellate Court

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Cornelius Walls, a minor represented by his mother Carolyn Walls, appealed a judgment from the Illinois Appellate Court after a jury awarded him $3,600 in damages for injuries sustained when he was struck by an automobile while crossing at a designated crosswalk. Although the jury found the driver, Marie Hofbauer, at fault, they also indicated that Walls was guilty of contributory negligence. This conflicting verdict led the trial court to set aside the jury's award and enter judgment for Hofbauer, based on section 65 of the Civil Practice Act.

The incident occurred in the afternoon as Walls, an eight-year-old third grader, was walking to a store for his mother. He stopped at the curb, looked for traffic, and, seeing an approaching car at a distance, proceeded into the crosswalk. He was subsequently struck by Hofbauer's vehicle, which was traveling west at 20 miles per hour. Hofbauer claimed she first saw Walls when he was standing in the street and believed he remained there until the impact occurred. A police investigation indicated the collision happened within the crosswalk.

The appeal focused on the special interrogatory regarding Walls' ordinary care for his safety, which the plaintiff's attorney objected to as potentially misleading due to its failure to mention Walls' age and experience. However, the trial court allowed the interrogatory, noting that accompanying instructions clarified that a minor is not held to the same standard as an adult, and the jury was to determine the proper standard of care for a child of Walls' age and experience. The appellate court ultimately reversed the trial court's judgment.

The plaintiff's attorney raises two key objections on appeal regarding an interrogatory related to contributory negligence. First, he asserts that the jury should not have considered contributory negligence because the evidence heavily favored the plaintiff. This objection suggests that Mrs. Hofbauer's negligence was established by law, especially since the statute mandates that drivers yield to pedestrians in crosswalks, particularly when traffic signals are not operational. The plaintiff was crossing 79th Street in a crosswalk, which supports his belief that he had the right to cross safely, given Mrs. Hofbauer was some distance away.

However, the plaintiff did not move for a directed verdict nor raise this objection during the instruction conference, rendering the objection untimely and not properly before the court. The appeal also implies a contention that the jury's answer to the special interrogatory was against the manifest weight of the evidence. The special interrogatory takes precedence over a general verdict; thus, if the jury's answer lacks substantial evidence or contradicts the manifest weight of evidence, it may be overturned.

Despite the jury's general verdict indicating that they believed Mrs. Hofbauer was negligent, their response to the special interrogatory suggests they found the plaintiff had acted unreasonably by not looking again before crossing. Given the plaintiff's age of eight, his actions must be assessed based on what is expected from similarly aged children. While pedestrians in crosswalks have the right-of-way, it is emphasized that they do not have it in all situations. Ultimately, the court concludes that Mrs. Hofbauer had a statutory obligation to stop her vehicle to avoid hitting the plaintiff.

The court determined that it was physically impossible for the plaintiff to have walked into the right front fender of the defendant's car as claimed. The defendant's testimony indicated that the plaintiff was at the northwest curb, out of her view, and that the collision occurred immediately after he was out of sight while she was driving slowly in the westbound lane. For the plaintiff to have collided with the car, he would have had to cross a 10-foot-wide lane and run diagonally into the fender, which contradicts the evidence. The overall evidence supports the plaintiff's position that he was in front of the car and that the defendant was negligent for not stopping. The court found the special interrogatory's answer contradicted the overwhelming evidence and decided to set it aside, reinstating the general verdict in favor of the plaintiff for $3,600. The judgment of the circuit court of Cook County was reversed, and it was concluded that a finding of contributory negligence would not be sustainable.