SAVAGE v. MARTIN
628 N.E.2d 606 (1993)
256 Ill. App.3d 272
195 Ill.Dec. 142
Margaret J. SAVAGE, as mother and next friend of Jeanette M. Savage, Plaintiff-Appellant,
James MARTIN, Defendant-Appellee.
Appellate Court of Illinois, First District, First Division.
December 6, 1993.
Office of Leonard M. Ring and Associates, P.C., Chicago (Leonard M. Ring, Debra A. Thomas and Leslie J. Rosen of counsel), for plaintiff-appellant.
Office of Williams & Montgomery, Ltd., Chicago (James K. Horstman, Barry L. Kroll, Kevin Campbell, and Lloyd E. Williams, Jr., of counsel), for defendant-appellee.
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.