{
  "id": 3095501,
  "name": "Andrew Seley, Administrator of the Estate of Mike Seley, Deceased, Appellant, v. Fred Eckhardt, Appellee",
  "name_abbreviation": "Seley v. Eckhardt",
  "decision_date": "1924-07-07",
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  "last_updated": "2023-07-14T19:12:31.592753+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "Andrew Seley, Administrator of the Estate of Mike Seley, Deceased, Appellant, v. Fred Eckhardt, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Boggs\ndelivered the opinion of the, court.\nAn action on the case was instituted in the Circuit Court of Madison county by appellant as administrator, against appellee, to recover damages for the death of his minor son, occasioned by his being struck by an automobile driven by appellee. The accident in question took place on East Broadway in the City of Alton. Appellant\u2019s intestate at that time was under 7 years of age, the accident having occurred on March 23, 1923, and he was 6 years of age on the 3rd day of July, 1922.\nThe declaration consists of four counts. The first count charges appellee with general negligence in the operation of said automobile. The second count charges the operation of said car at a speed greater than was reasonable and proper, having regard to the traffic and use of the highway, etc. The third count charges that the place of said accident was in a closely built-up business portion of the City of Alton, and that the rate of speed at which appellee was operating said car was more than 10 miles per hour. The fourth count charges that the place of said injury was in a residential portion of said city, and that appellee was then and there operating his automobile in excess of 15 miles per hour; by reason whereof said automobile struck appellant\u2019s intestate, resulting in his injury and death as aforesaid.\nTo said declaration, appellee filed a plea of the general issue. A trial was had, resulting in a verdict and judgment, in favor of appellee. To reverse said judgment, this appeal is prosecuted.\nThe record discloses that Broadway in the City of Alton runs in an easterly and westerly direction; that on the south side of said street is located the track of the Alton, Granite & St. Louis Traction Company. Just south of said track, but not on said street, is the right of way and track of the Big Four Railroad, and further south is the Chicago & Alton track. Broadway is a paved street, and the pavement extends over the tracks of said traction company and to the south of the south track about 2 feet.\nThe point where the injury occurred was between Washington Avenue, a street running in a northerly direction from Broadway, and Illinois Avenue, a street about 1 block east of Washington Avenue, and which runs in a southerly direction from Broadway. Neither Illinois Avenue nor Washington Avenue crosses Broadway. Appellant\u2019s intestate lived on Illinois Avenue, about 2 blocks south of Broadway.\nThe record discloses that, about 4.30 o\u2019clock on the afternoon of the day in question, appellant\u2019s intestate was returning from school. He had come down Washington Avenue to Broadway, and then in company with some three or four other boys, passed down Broadway along the north side, going in an easterly direction. At a point on the north side of Broadway about three-fourths of the distance from Washington Avenue to Illinois Avenue, there is a restaurant known as the \u201cBee-Hive.\u201d The boys had stopped at this point for a few moments, and then appellant\u2019s intestate started across Broadway in a southerly or southeasterly direction, towards Illinois Avenue, when he collided with appellee\u2019s automobile, was thrown to the pavement and rendered unconscious, and died from his injuries in about a week thereafter.\nAppellee was riding in a Nash roadster, in company with his brother, George Eckhardt, and one Theodore Parker. They were traveling in an easterly direction along said pavement. One M. L. Peters, a witness on behalf of appellant, who was a policeman in the City of Alton at the time of the injury, testified that in his judgment appellee was driving 40 miles per hour just prior to the accident. He further testified that after the accident he said to appellee: \u201cWhat is the matter with yon East Alton fellows? When yon get up here you go crazy, driving your cars. You go crazy driving your car. \u2018Well,\u2019 he said, \u2018I wasn\u2019t driving very fast.\u2019 I said, \u2018How fast were you driving?\u2019 \u2018Not over twenty miles.\u2019 \u2018Well,\u2019 I said, \u2018That is ten miles too fast.\u2019 \u201d Appellee testified in reference thereto that he did not remember having made that statement to Peters. Peters further testified that appellee had run his car off of the brick pavement on to the dirt or cinder road between the brick pavement and the interurban tracks, and that he \u201cnoticed a deep trench cut in the ground; in the cinders; it was quite long; I don\u2019t know just exactly how long. My best judgment as to the length of the ditch or trench that was cut by the wheels was 20 feet. It was about four inches below the surface of the surrounding cinders, as near as I can judge.\u201d This witness further testified that he placed appellee under arrest.\nEdward Mosby testified on behalf of appellant that appellee\u2019s automobile was running at a high rate of speed, in his judgment 40 miles an hour, and that \u201cthe automobile went about three telephone lengths before it stopped after it had struck the little boy.\u201d\nSidney Bosoluke testified that appellee \u201cwas driving fast, going pretty fast. I saw the car hit Mike Seley. It hit him right here; right in here (indicating the side of the head) and it knocked him down and he rolled two or three times and the blood just poured out. The car ran about two and a half telephone posts before it stopped after it struck Mike.\u201d\nJim Papas, a witness on behalf of appellant, testified that he saw the automobile hit appellant\u2019s intestate. \u201cI think it was going 35 or 40 miles, something like that. * * * The automobile was going three or four posts; that is telephone posts.\u201d\nTony Papas testified that in his judgment the automobile \u201cwas going 30 miles an hour. The automobile stopped at the third telephone post.\u201d\nOn the other hand, appellee, his brother, and Theodore Parker, each testified that just prior to and at the time of said accident, said car was only being driven about 10 miles per hour. However, all of these witnesses admitted on cross-examination that they had testified at the coroner\u2019s inquest that said car was being operated at some 14 or 15 miles per hour at the time of the injury.\nThe record further discloses that on the north side of Broadway, between Washington Avenue and Illinois Avenue, there are some 6 or 8 business buildings in said block, and that there were certain business buildings on the south side of said street at or near the point in question. The evidence therefore fairly tended to prove that at the place where the injury occurred, it was a closely built-up business section of the city. Schumacher v. Weinrath, 177 Ill. App. 530.\nThe record is further to the effect that, at from 4 to 5 o\u2019clock in the afternoon, there is considerable traffic on Broadway; that a great many persons pass along the sidewalk on the north side of Broadway, and that children returning from school come along said street at that time in considerable numbers. The record also discloses that there is a pathway crossing from the north to the south side of Broadway, at or near where appellant\u2019s intestate started to cross. The evidence is to the effect that persons living on Hlinois Avenue, in going to and from their homes, frequently cross Broadway at or near the point where appellant\u2019s intestate received his injury.\nThis being the state of the record, it was important that the jury be correctly instructed as to the law governing the case. Register-Gazette Co. v. Larash, 123 Ill. App. 453; Chicago, B. & Q. R. Co. v. Appell, 103 Ill. App. 187.\nIt is contended by appellant that the court erred in giving the first, second and third instructions given on behalf of appellee.\nWe have examined the first and second of appellee\u2019s given instructions, and are of the opinion that they both state correct principles of law, and were applicable to the facts in the case, and the court did not err in giving the same.\nThe third instruction given on behalf of appellee is as follows:\n\u201cThe court instructs the jury that a child over seven years of age is required to exercise the degree of care which a child of his age, intelligence, capacity, discretion, experience and knowledge of his surroundings would naturally and ordinarily use in the same situation and under the same circumstances.\u201d\nThere was no conflict in the evidence with reference to the age of appellant\u2019s intestate. The father first testified that he was seven years of age, but then followed it up by giving the date of the birth of the child, and stating that he would have been 7 years of age on July 3, preceding the trial. The accident occurred on the 23rd day of March preceding, so that appellant\u2019s intestate was under 7 years of age.\nThe law recognizes that, up to the age of 7 years, a child is incapable of such conduct as will constitute contributory negligence, and our courts have uniformly so stated the law in their instructions to juries. McDonald v. City of Spring Valley, 285 Ill. 52-55. To the same effect are Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Illinois Central R. Co. v. Jernigan, 198 Ill. 297, 298; Richardson v. Nelson, 221 Ill. 254-257; Hackett v. Chicago City R. Co., 235 Ill. 116; 20 R. C. L. 127.\nThe court therefore erred in giving the above instruction, as its only tendency would be to mislead the jury and to cause them to believe that the court was of the opinion that that principle of law, as stated in said instruction, was applicable in this case. Especially do we think this is true, as the fourth instruction given on behalf of appellee informs the jury that \u201ceach and every instruction read to you is given by the court, and it is your duty to know and consider these instructions, and to obey them, and to follow them, and it is your duty to honestly and impartially apply the evidence and the facts in this case to the law declared in the instructions given you by the court.\u201d\nCounsel for appellee practically concedes that this instruction should not have been given, but insists that appellant\u2019s second given instruction cured the error in the giving of appellee\u2019s third given instruction. We are of the opinion, however, and hold that the third instruction given on behalf of appellee would not necessarily be cured by the giving of appellant\u2019s second instruction, as the jury would not know which instruction to follow.\nWe would not be inclined to reverse this case for the giving of the third and fourth instructions given on behalf of appellee, but for the fact that the evidence in the case is sharply conflicting with reference to whether or not appellee was guilty of negligence in driving his automobile at an excessive and dangerous rate of speed, just prior to and at the time of the accident, and as to whether, if so guilty of negligence, such negligence was the proximate cause of the injury and death of appellant\u2019s intestate.\nFor the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.\nReversed and remcmded.",
        "type": "majority",
        "author": "Mr. Justice Boggs"
      }
    ],
    "attorneys": [
      "Burton & Burton, for appellant; William P. Boynton, of counsel.",
      "Geers & Geers, for appellee; R. V. Gustin, of counsel."
    ],
    "corrections": "",
    "head_matter": "Andrew Seley, Administrator of the Estate of Mike Seley, Deceased, Appellant, v. Fred Eckhardt, Appellee.\n1. Highways \u2014 proof as to business character of street at scene of automobile collision. Where the record discloses that within the block where an automobile accident occurred there were six or eight business buildings on one side of the street and certain business buildings on the other side at or near the point in question, the evidence tended to prove that the place where the accident occurred was a closely built up business section of the city.\n2. Negligence \u2014 capacity of child under seven years for contributory negligence. The law recognizes that up to the age of seven years a child is incapable of such conduct as will constitute contributory negligence.\n3. Negligence \u2014 when instruction requiring child under seven years to exercise care for safety in using highway erroneous. Where the undisputed evidence showed that deceased was under seven years of age the court erred in giving the jury an instruction relative to the care required of a child over seven years of age, especially when it was followed by an instruction that each and every instruction read was given by the court and that it was the duty of the jury to apply to the facts the law as given in the instructions.\n4. Highways \u2014 when giving of misleading instructions in negligence case reversible error. Where the evidence in an action for damages for the death of a child under seven years of age was sharply in conflict as to whether defendant was guilty of negligence in driving his automobile at an excessive and dangerous speed just prior to and at the time of the accident and as to whether, if so guilty, his negligence was the proximate cause of the accident, instructions which may have misled the jury into applying to deceased the degree of care required of a child over seven years of age was such error as will require reversal of a judgment for defendant.\nAppeal by plaintiff from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding.\nHeard in this court at the March term, 1924.\nReversed and remanded.\nOpinion filed July 7, 1924.\nBurton & Burton, for appellant; William P. Boynton, of counsel.\nGeers & Geers, for appellee; R. V. Gustin, of counsel."
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