text:
    ANTTI KANGAS, d/b/a Kangas Construction Company, Plaintiff-Appellant, v. ANTHONY TRUST et al., Defendants-Appellees.
    Second District
    No. 81—903
    Opinion filed October 27, 1982.

      Robert M. Bollman and Newton E. Finn, both of Diver, Bollman, Grach & Quade, of Waukegan, for appellant.
    Conzelman, Schultz, Snarski & Muller, of Waukegan, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Antti Kangas, d/b/a Kangas Construction Company, appeals from a judgment denying recovery under his suit for a mechanic’s lien, and awarding the homeowners, Anthony Trust and Madeline Trust, his wife, $25,155.21 on their counterclaim. On appeal Kangas does not challenge the dismissal of his lien claim but contends that several items were improperly included in the damages awarded.

On November 7, 1977, the Trusts contracted with Kangas for con-Trust testified that it was intended as a home that they planned to live in as a retirement home with an apartment for her parents. The original contract price was $132,496 payable in two installments, the first due when the house was under roof and the balance when the house was completed to the Trusts’ satisfaction; with extras, the price by later agreement was $144,482.60. The house was to be completed within 120 days from the ground breaking.

The house was under roof in January 1978 when problems developed. The asphalt roof shingles would not flatten out because workmen placed the shingles over accumulated ice and snow; and the roof sagged because the rafters were set at different levels. According to Mrs. Trust, Kangas told her that the shingles would flatten out in the summer heat, but they never did.

At trial, workmen who inspected and did repairs testified to other construction problems which indicated that work done by Kangas was not good and workmanlike. The entire house was “out of plumb.” The exterior walls leaned out IV2 inches; the floor tilted down 2V2 inches; the house sagged because the center beam in the basement was not level; the heating and air conditioning ducts were crooked and the standard fittings were nonexistent. The floor joist was single rather than double as called for in the contract, and the upstairs and downstairs floor joists had been reversed; as a result the joists ran in opposite directions and there was no bearing wall to support the second floor, which sagged.

A particular item challenged on appeal is the basement floor, which was poured at least four inches higher than called for in the contract. Ken Olson, the architectural designer who had drawn up the plans, testified that the basement walls were poured 4V2 inches too short and the only way to conform to the contract would have been to dig out the foundation and excavate further. He admitted that he was on the site when the floor was poured but denied the Trusts had authorized the basement floor at the level of seven foot six inches rather than seven foot 10 inches specified in the contract. The actual height variance from the plans was never definitely established. According to Kangas, from footing to the top of the foundation the height was seven foot six inches with a two-by-six plate on top of the concrete adding IV2 inches. According to Olson, the variance was originally 6V2 inches, but ended up 4V2 inches after the concrete on the footing was depressed two inches. In his reply to the Trusts’ counterclaim, Kangas admitted that the basement height was four inches shorter than specified in the plan.

The Trusts terminated the contract with Kangas in October 1978, and contracted with Olson to correct and complete construction. Olson said that his repairs, including installation of a new cedar roof, were done in the least expensive way and cost $45,000. The Trusts sold the house and lot together for $155,000.

In its judgment order the trial judge computed damages:

“[The parties] have made the following expenditures, had the following losses or would have had to expend the following sums to build, finish or correct the building ***:
Kangas $ 63,000.00
Olson (Construction) 45,000.00
Olson (Inspection) 1,162.50
Items admitted by Kangas 1,710.00
Glue 66.00
Air Comfort 5,510.00
Blacktop 1,600.00
Rough Grading 1,126.42
Painting 2,150.00
Value of Lot 35,000.00
Carpet Allowance 2,976.00
Fence Replacement 267.09
Wallpaper 477.20
Brick above window 2,860.00
Lowering of basement floor 20,000.00
$182,905.21
That there should be deducted from the above the sum of $2,750.00 being one-half of the cost of finishing part of the basement and $155,000.00 being the price for which Defendants sold the premises in question.”

The judge expressed additional findings that time was intended to be of the essence of the contract; that Kangas substantially breached the contract by not completing it within time; that there was bad workmanship, and that in various instances there was a “total failure to look at the plans and specifications.” He also found that the roof was done in an unworkmanlike manner with no effort to cure the defective construction; that the basement height provided in the contract “was important to the Trusts”; that Kangas “didn’t pay any attention to the plans and specifications” as to the basement height, and that by Kangas’ own testimony he “built it the way he usually builds a house.”

1. The Roof

Both parties agree that as to the roof the cost or remedying the defect is the proper rule of damages. (See Park v. Sohn (1982), 89 Ill. 2d 453, 464.) A witness for Kangas testified that new shingles could have been nailed over the rippled shingles for $4,000 but did not estimate the cost of correcting the uneven rafters underlying the shingles. Olson, testifying for the Trusts, said that the repairmen “would have had to have taken the roof apart in certain areas, rebuilt it, eliminated all the shingles that were on the roof at the time, and re-shingled it.” In Olson’s opinion, the cedar shakes roof was less expensive than insisting on full performance requiring the roof to be rebuilt. In oral argument Kangas has conceded that the cedar roof was the less expensive method of remedying the roof defects, but he further contends, citing St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, that the Trusts were unjustly enriched by installation of a higher grade roof over the defective shingles. On this question of fact the judge chose to believe Olson; and his award of the installation cost of the cedar shakes as a remedy for the defect is not against the manifest weight of the evidence.

St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, is distinguishable. The court held that the hospital (owner) was not entitled to indemnity from the contractor for the extra cost of installing a more expensive fire retardant paneling, which the local building code required, where the hospital’s architect (an “exclusive agent”) failed to specify the more expensive paneling, approved initial installation of the less retardant paneling, and performance by the general contractor was good and workmanlike. By contrast, the trial court here found that Kangas had breached the contract by failing to construct the roof in a good, workmanlike manner, and the owners stand blameless.

The Trusts received a better roof than they contracted for only because Kangas made the cheaper roof more costly to rebuild.

The trial court did not err in refusing to grant a setoff to Kangas of $22,384 which represented the increased costs of installing the cedar shake shingles over reshingling the defective roof.

2. The Basement

The plans called for the height of the basement to be seven feet 10 inches. Prior to entering into the contract Mrs. Trust had pointed out to Kangas the basement in her previous house which had this admittedly high basement. There was evidence that the basement walls had been poured short before either the Trusts or Olson had seen the construction. When Olson first noticed the variance from the plans he said he told Kangas that the basement walls were poured too short but Kangas merely said it was his standard height. Olson suggested that they could “buy” two inches of ceiling height by lowering the floor, laying two inches of concrete and gravel base over the footing instead of the four inches called for by the plans. He said the only alternative at that time would have been to excavate, destroy one foundation wall, remove the footing and lower the floor the necessary amount. He said at that time this would have cost between $18,000 and $20,000.

a. Equitable Estoppel

Under these facts we are not persuaded by Kangas’ argument that the Trusts were equitably estopped by the agreement of Olson, found to be their agent, to go ahead with the pouring of the basement floor. At that time the basement walls were already Axlz inches too short and the ceiling would have been 6V2 inches shorter than the contract called for except for Olson’s agreement to lower the floor by diminishing the base material, ending up with a seven foot six inch ceiling height instead of the seven foot 10 inches called for in the contract. The cost to repair at that time could not have been changed by Olson’s assent to the partial cure. True, there was testimony that the cost of repair would have been $26,800 when Kangas left the job, but the court did not award damages on this basis.

For a voluntary acceptance of defective performance to work a complete discharge, the acceptance must be absolute and unconditional (Broncata v. Timbercrest Estates, Inc. (1968), 100 Ill. App. 2d 49, 54), based on facts and circumstances indicating that the owner intentionally relinquished a known right (Lempera v. Earner (1979), 79 Ill. App. 3d 221, 223). The acts relied on by the party in breach must be inconsistent with an intention by the injured party to insist on rights to performance under the contract. (John Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 1020.) The mere receipt of defective performance does not discharge a claim for damages for the breach. (Corbin, Contracts sec. 1245, at 1000 (1952).) There must also be an expression of assent to accept defective performance in satisfaction and as a complete discharge. (Restatement of Contracts sec. 411 (1932); Restatement (Second) of Contracts sec. 277(2) (1981).) Assent is required because defective performance alone cannot discharge the duty to perform; the discharge is effected solely by the expression of assent to discharge. (Corbin, Contracts sec. 1245, at 1000 (1981).) The burden of proving acceptance is on the party pleading it. (Intaglio Service Corp. v. J. L. Williams & Co. (1981), 95 Ill. App. 3d 708, 714.) We conclude that the Trusts did not accept the defective performance.

b. Measure of Damages

There are various formulas which may be applied in fixing damages in building construction cases, as the trial court properly noted, but the circumstances dictate the method to be used. Kangas argues that the proper formula here is to determine the amount the fair market value of the house was diminished by the failure to follow the plans and that since the Trusts presented no evidence to show any diminution in value when they sold the house without changing the basement they were not entitled to be credited with the $20,000 awarded.

Kangas relies principally on language in Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, to support his position. In Brewer, the trial court awarded $7,500 in damages for defects in the work based on diminution in the value of the house.

The appellate court noted that although the contractor’s performance of his agreement was less than substantial the builder’s omissions of performance, a number of unspecified interior defects, “would involve a substantial tearing down and rebuilding of the structure” and “to avoid economic waste the measure of damages is not the cost of repair, but rather is the difference in value ***.” 42 Ill. App. 3d 668, 679; see also Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 614.

We do not believe that the circumstances of this case appropriately call for application of the diminution in value rule. Granted, the cost of remedying the defect is substantial, but it is evident that the damage arose from a wilful violation of the building contract. The trial court found as a fact that failure to conform was because Kangas “didn’t pay any attention to the plans and specifications,” and “built it the way he usually builds a house.” Mrs. Trust wanted a seven foot 10 inch ceiling in the basement of the duplex that she then intended to live in as a retirement home, which would contain an apartment for her parents; she showed Kangas a basement with that height in her previous house; she particularly expressed her desire that the height be the same in her new home and pointed out the 12-inch I beams; and she specified it in the plans. On the record we cannot say the four- to 41/2 inch variance was trivial, but conclude that the basement height was of “special value” to Mrs. Trust. Cf. Restatement (Second) of Contracts sec. 348, illust. 4 (1981).

The cases in Illinois which have been cited and which we have seen do not involve a wilful violation of the contract by a builder.

Cases in other jurisdictions, however, have directly confronted this issue and appear to have qualified the diminution of value rule by holding that it applies only if the breach is not wilful. (See Shell v. Schmidt (1958), 164 Cal. App. 2d 350, 359, 363, 330 P.2d 817, 823, 825-26, cert. denied (1959), 359 U.S. 959, 3 L. Ed. 2d 766, 79 S. Ct. 799; Hourihan v. Grossman Holdings Ltd. (Fla. App. 1981), 396 So. 2d 753, 755; American Standard, Inc. v. Schectman (1981), 80 A.D.2d 318, 322-23, 439 N.Y.S.2d 529, 532-33. See generally Annot., 76 A.L.R.2d 805, 825-26 (1961).) It has also been recognized that awarding damages equal to the amount required to reconstruct the dwelling so as to make it conform to the specifications is proper when the contract is one to construct a dwelling for the owner who plans to live in it as distinguished from a commercial structure “where the aesthetic taste of the owner is not so deeply involved.” Fox v. Webb (1958), 268 Ala. 111, 119, 105 So. 2d 75, 82-83; Carter v. Quick (1978), 263 Ark. 202, 209, 563 S.W.2d 461, 465.

We, however, do not conclude that every wilful breach requires that the cost of repair be automatically used as the measure of damages. Obviously, every variation from specifications does not mandate this result. If the builder does not perform in the manner called for in the contract, but in good faith, although intentionally, does something equally as good he should not be required to pay for substantial repairs. (See 3A Corbin, Contracts sec. 707, at 330 (I960).) Otherwise, the penalty and forfeiture, with no real damage to the owner, may be grossly disproportionate to the nature of the breach. (5 Corbin, Contracts sec. 707, at 331 (I960).) But we agree with Corbin that where the variance from the contract does not result in a lesser market value than would result from exact performance, it may still be less than substantial performance; and that under that circumstance the wilful violation of the contract by the builder is a factor which may be considered by the trier of fact in determining whether the breach requires application of cost of repair or diminution in value as the measure of damages. (5 Corbin, Contracts sec. 1089, at 491 (1964).) We also conclude that in addition to the determination of wilfulness, the owner’s purpose in constructing a dwelling for his own use and therefore to his own tastes is also a factor to be considered. Fox v. Webb (1958), 268 Ala. 111, 119, 105 So. 2d 75, 82-83; Carter v. Quick (1978), 263 Ark. 202, 209, 563 S.W.2d 461, 465.

We hold that the trial court’s resolution of the measure of damages and the amount was proper on this record.

3. Value of the Vacant Lot

Kangas finally argues that the trial court improperly included the value of the lot, $35,000, in computing damages. We do not agree. The trial judge included the lot as an item in adding up the Trusts’ costs before subtracting from this sum ($182,905.21) the sales proceeds of the house and lot together ($155,000). This sales price was unallocated between the house and lot. The court properly included the lot since the lot had been included in the sale. Kangas was not prejudiced thereby in computing damages since the same result is reached if the lot is excluded both from the cost of completion ($147,905.21) and the sales proceeds of the house alone ($120,000). The value of the lot on either side of the equation cancelled each other out.

The judgment of the circuit court of Lake County is therefore affirmed.

Affirmed.

NASH and HOPE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    MELINE A. SEARS, Plaintiff, v. KOIS BROTHERS EQUIPMENT, INC., et al., Defendants and Third-Party Plaintiffs—Appellees.—(Garwood Industries, Inc., et al., Third-Party Defendants—Appellants.)
    First District (3rd Division)
    No. 80—599
    Opinion filed November 24, 1982.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Stephen Sonderby, and Sloan and Connelly, P.C., all of Chicago (Leonel I. Hatch, Charles H. Cole, Stephen R. Swofford, Joel W. Ostrander, and Michael P. Connelly, of counsel), for appellants.
    William V. Johnson, of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Meline A. Sears, brought this action against Kois Brothers Equipment, Inc. (Kois Bros.) and Melvin Dirksen to recover damages for the wrongful death of her husband, Earl Sears, Sr., who was killed when his automobile collided with two dump bodies which had fallen on the Illinois Tollway from a Kois Bros, truck driven by Dirksen. The defendants filed a third-party complaint for indemnity against Garwood Industries, Inc. (Garwood), which had loaded the dump bodies on the truck, against Orr Construction Company and/or International Bridge Construction Company (Orr), which were engaged in road repair activities near the scene of the accident, and against the Illinois Toll Authority (Tollway).

Kois Bros, and Dirksen reached a settlement with the plaintiff after the cause was assigned for trial but before the jury was selected. This matter then proceeded to trial in the circuit court of Cook County on the third-party complaint for indemnity. The jury returned a verdict in favor of Kois Bros, and Dirksen and against the third-party defendants. The trial court entered judgment on the verdict. Post-trial motions filed by the third-party defendants for judgment notwithstanding the verdict or a new trial were denied, and the third-party defendants appeal.

On appeal, the third-party defendants contend that (1) Kois Bros, and Dirksen were guilty of active negligence as a matter of law; (2) neither the conduct of Orr nor the conduct of the Tollway was the proximate cause of Sears’ death; (3) that the Tollway was not actively negligent; and (4) certain rulings by the trial court on the evidence and on the jury instructions were erroneous.

Melvin Dirksen testified that on May 12, 1972, he was employed by Kois Bros, of Denver, Colorado. Dirksen was an experienced truck driver who had driven trucks of various sizes from 1955 until 1972. On May 12, 1972, Dirksen went to Garwood’s facility in Wayne, Michigan, in order to pick up a Kois Bros, truck loaded with dump bodies manufactured by Garwood. Upon his arrival at approximately 8:30 p.m., a Garwood employee pointed out the 1972 Dodge truck, a cab and chassis unit, which Dirksen was to drive to Denver. Affixed to the chassis were four dump bodies, two in the front and two in the back. The two front bodies were welded together with metal straps, as were the two back bodies. The lower front body also had straps welded to it which were bolted to the frame of the truck. There were no straps bolted from the lower back body to the frame; instead, two bands were placed around the bodies and the frame of the truck.

Prior to his departure, Dirksen inspected the load to determine if the bands were secure. In his opinion, the truck was safe for travel. Furthermore, it was his position that if Garwood had loaded the truck, the load was safe.

Dirksen left Michigan that evening and entered Illinois at approximately 2 a.m. As he approached the Calumet exit on Interstate 294, Dirksen was traveling at approximately 50-55 miles per hour when he hit an extremely rough section of the road. The two rear dump bodies fell off the chassis and landed in the lane nearest the median strip. Dirksen immediately parked the truck, grabbed his flashlight, and proceeded to wave over oncoming traffic. Although Dirksen successfully alerted several drivers to the obstruction in the road, the automobile driven by the decedent hit the dump bodies.

Dirksen did not recall seeing any road construction signs or barricades prior to the rough road. He did not know if there were any flares, reflectors or warning devices on the truck.

George Kois testified that he was president of Kois Bros., a distributor and manufacturer of refuse and truck equipment. Kois Bros, distributes the Garwood product line in Colorado.

On May 12, 1972, Kois went to Garwood’s facility in Wayne, Michigan, around noon with the intention of driving to Denver the truck loaded with dump bodies. Because the truck was not ready at the time, Kois decided to drive a refuse truck and left instructions for Dirksen to take the truck with the dump bodies.

Prior to his departure, Kois informed three Garwood employees that a customer of Kois Bros, had a problem with dump bodies shifting on a previous load when they had been banded to the truck. Kois recommended that Garwood load the dump bodies with a weld strap and bolt method. However, Kois did not relay this information to Dirksen.

On his drive to Denver, Kois encountered an extremely rough portion of road on the Illinois tollway just west of the Indiana border that appeared to have a very sharp drop with many potholes. This rough area was the scene of Dirksen’s accident.

Several former employees of Garwood testified that the placing of two bands around the back dump bodies was an unsafe method of securing the load. For purposes of this appeal, Garwood concedes that it negligently affixed the cargo to the truck and that this negligence was a proximate cause of the accident involving the decedent.

Earl Sears, Jr., the decedent’s son, testified that on May 12, 1972, he and his father were driving west on Interstate 80-94 before it became Interstate 294. Sears, Jr., was in a separate automobile behind his father’s vehicle. Sears, Jr., testified that he encountered construction activity at Torrence Avenue near the Calumet Expressway. Sawhorse barricades with yellow blinking lights and a lighted arrow indicated that the construction was in progress. The barricades extended the entire distance of the construction (approximately three miles) except for exit and entrance ramps.

The accident occurred at the end of the construction area on a bridge on Interstate 294. Sears, Jr., testified that the surface of the road on the bridge area became very rough. Both he and his father reduced their speed to approximately 45-50 miles per hour. Sears, Jr., a truck driver for six years, stated that it was the custom and practice of track drivers to carry flares or reflectors in case of an emergency.

I

Garwood, Orr and the Tollway (indemnity defendants) first argue that the trial court erred in denying their motions for judgment notwithstanding the verdict because Kois Bros, and Dirksen were not entitled to indemnity since they were guilty of active negligence as a matter of law. They assert that the evidence revealed that Dirksen negligently inspected the cargo prior to his departure; that he violated a law prohibiting the driving of a vehicle in an unsafe condition (Ill. Rev. Stat. 1971, ch. 95V2, par. 12 — 101(a)); that he drove without caution through the construction area; and that he violated a law requiring a track driver to carry certain flares, lanterns and red flashers in case of an emergency. (Ill. Rev. Stat. 1971, ch. 95%, par. 12— 702(a).) The indemnity defendants also argue that although Kois was aware of a prior problem with dump bodies shifting when they were only banded to the track, he did not warn his driver of this fact.

Third-party indemnity is allowed to a tortfeasor whose misconduct is passive in comparison to the misconduct of another tortfeasor whose wrongdoing can be characterized as active and the primary cause of the plaintiff’s injuries. (Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 322 N.E.2d 58.) Because the words “active” and “passive” are imprecise and terms of art, they must be applied in accordance with concepts developed on a case by case basis rather than in accordance with the usual dictionary definitions of the words. (Marchi v. Indiana Harbor Belt R.R. Co. (1980), 83 Ill. App. 3d 1005, 404 N.E.2d 938.) Indemnification is available only when there is a qualitative distinction between the negligence of the two tortfeasors. (Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941.) It will not be granted when the first tortfeasor is actively negligent despite the active negligence of the second tortfeasor. (Hanson v. Cresco Lines, Inc. (1978), 57 Ill. App. 3d 168, 372 N.E.2d 936.) In order that the indemnitee’s conduct be considered as passive or only secondarily contributing to the resulting injury, it must appear that he did not breach an affirmative duty owed to the plaintiff in the underlying action. (Donaldson v. Holy Family Hospital (1981), 94 Ill. App. 3d 285, 418 N.E.2d 873; Peterson v. Tam O’Shanter Racquet Club, Inc. (1980), 90 Ill. App. 3d 1029, 414 N.E.2d 181; Burgdorff v. International Business Machines (1975), 35 Ill. App. 3d 192, 341 N.E.2d 122.) The question of active-passive negligence and the imposition of third-party indemnity is normally a question of fact for the jury to determine. McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 338 N.E.2d 868; Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 398 N.E.2d 382.

In answer to the indemnity defendants’ argument that the trial court erred in denying their motions for judgment notwithstanding the verdict, Kois Bros, and Dirksen contend that there was ample evidence to support the jury’s finding that they were free from major fault. They argue that Dirksen exercised due care in his inspection of the load; that Dirksen was not driving negligently; and that Dirksen’s decision to use a flashlight to warn the oncoming traffic was reasonable under the circumstances. When all of the evidence is viewed in its aspect most favorable to Kois Bros, and Dirksen, we cannot say that it so overwhelmingly favors the indemnity defendants that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Thus, the trial court properly denied the motions for judgment notwithstanding the verdict.

II

Both Orr and the Tollway argue that they were entitled to judgment notwithstanding the verdict because their alleged misconduct, the creation of a dangerous road condition, was not the proximate cause of Sears’ death. They assert that their conduct, at most, furnished a condition by which the accident was made possible and that the intervening conduct of others in creating and transporting a dangerous load was the proximate cause of the accident.

We first note that the evidence established that the surface of the road on the bridge where the accident occurred suddenly became very rough and that there was no warning to alert the driving public of this danger. We believe that such evidence was sufficient to support the jury’s finding that both the dangerous road condition created by Orr and the Tollway and the improper loading by Garwood were proximate causes of Sears’ death. There can be more than one proximate cause of an injury. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 413 N.E.2d 1242.) In such a situation, one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury, even though the injury would not have occurred but for the negligence of the other person. Watson v. Chicago Transit Authority (1973), 12 Ill. App. 3d 684, 299 N.E.2d 58.

We also note that to escape liability for their negligence, the indemnity defendants must demonstrate that the intervening event was unforeseeable as a matter of law. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) In our judgment, it is not unforeseeable that an improperly loaded vehicle would utilize the public roads.

Our supreme court has repeatedly stated that the question of proximate cause is ordinarily a question of fact for the jury. (See Felty v. New Berlin Transit, Inc. (1978), 71 Ill. 2d 126, 374 N.E.2d 203, and cases cited therein.) Because we cannot say that the evidence, when viewed most favorably to Kois Bros, and Dirksen, so overwhelmingly favors Orr and the Tollway that no contrary verdict could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504), the trial court properly denied the motions for judgment notwithstanding the verdict.

Ill

The Tollway also argues that it was entitled to judgment notwithstanding the verdict because, assuming that it was negligent in failing to warn the public of the dangerous condition of the roadway, said negligence was passive in character. The Tollway supports this position by pointing out that pursuant to a contract between the Tollway and Orr, it was the responsibility of Orr to establish and maintain barricades and warning devices. We first note that the Tollway cannot delegate the duty it owed to the public by a contract with a third party. Furthermore, as we have previously discussed, the question of whether a party is actively or passively negligent is a question of fact for the jury. Because there was ample evidence to support the jury’s finding that the Tollway was actively negligent, we must agree with the trial court’s denial of the Tollway’s motion for judgment notwithstanding the verdict.

IV

The indemnity defendants also contend that certain rulings by the trial court on jury instructions and on the evidence were erroneous.

In support of their argument that Kois Bros, and Dirksen were actively negligent, the indemnity defendants presented evidence which they believed would prove that Dirksen drove an unsafe truck on the Tollway, that he drove without caution through a construction area containing barricades with yellow flashing lights, and that, once the dump bodies fell onto the Tollway, he failed to display the customary red emergency warning devices. In connection with these theories of active negligence, the indemnity defendants tendered certain instructions reciting three provisions of the Illinois Motor Vehicle Code. They contended that Dirksen violated these provisions and that said violations were the proximate cause of Sears’ death. The trial court refused to tender these instructions to the jury.

Illinois law is clear that the violation of a statute designed for the protection of human life or property is prima facie evidence of negligence. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881.) A party seeking an instruction on the existence of a statute in effect at the time of the occurrence must demonstrate that the statute was intended to protect against the injury which occurred, and that the injured party is within the class intended to be protected. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.

Dirksen and Kois Bros, do not contend that the three provisions of the Motor Vehicle Code were not intended to protect against the injury which occurred or that Sears was not within the class intended to be protected. Rather, they assert that there was no evidence to support the tendering of these instructions.

The pertinent portion of Garwood’s Instruction No. 7 was as follows:

“It is unlawful for any person to drive on any highway any vehicle which is in such an unsafe condition as to endanger any person or property. Ill. Rev. Stat. 1971, ch. 951/2, par. 12— 101(a).”

We agree with Dirksen and Kois Bros, that there was no evidence that the vehicle itself was in an unsafe condition. Thus, the trial court correctly refused to tender this instruction.

The pertinent portion of Garwood’s Instruction No. 11 was as follows:

“When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed past such signal only with caution. Ill. Rev. Stat. 1971, ch. 951/2, par. 11 — 309(2).”

Dirksen and Kois Bros, argue that the trial court correctly refused to tender this instruction because the yellow lens existed to indicate a lane closing, not to warn of the rough road. We agree. Furthermore, Sears’ testimony reveals that the accident occurred on a rough portion of the bridge past the construction area and the yellow lights.

The pertinent portion of Garwood’s Instruction No. 13 was as follows:

“When a truck is disabled on any highway or shoulder at night, the driver shall display a lighted fusee, a lighted red electric lantern or a portable red emergency reflector immediately at the traffic side of the vehicle. The driver of such vehicle may simultaneously flash the two front and two rear turn signals as a warning to vehicles and continue flashing until the portable signals have been placed. Ill. Rev. Stat. 1971, ch. 951/2, par. 12 — 702(c).”

We agree with Dirksen and Kois Bros, that this instruction was inapplicable because there was no disabled truck on the highway.

Garwood next argues that the trial court erred in excluding from evidence a copy of the distributorship agreement between Garwood and Kois Bros. Garwood contends that this document would have revealed that Kois Bros, transported the load at its own “cost and risk in respect to all loss, destruction or damage from any cause whatsoever.” We agree with the trial court that this document was irrelevant to the issue of whether Kois Bros, was actively negligent and that it was properly excluded.

Garwood also contends that the trial court improperly allowed George Kois to testify that he told certain Garwood employees that one of his customers had a problem with dump bodies shifting on a previous load when they had been banded to the truck. Garwood contends that this testimony was inadmissible hearsay. However, this testimony was clearly not offered as proof that another accident had occurred. Rather, it was offered to show that Garwood had notice that merely banding the dump bodies to the chassis was improper. Thus, the trial court committed no error in this regard.

Orr also argues that the trial court erred in refusing to allow the jury to take a diagram of the construction area and accident scene into the jury room. Considerable discretion is given to the trial court as to the exhibits which may be taken into the jury room. (Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 367 N.E.2d 472; Raspar v. Clinton-Jackson Corp. (1969), 118 Ill. App. 2d 364, 254 N.E.2d 826.) In the instant case the diagram was used extensively by Earl Sears, Jr., for demonstrative purposes during his testimony. We cannot say that the trial court abused its discretion in not allowing it to go to the jury during deliberations.

Finally, Orr argues that a certain comment by the trial court constituted an improper oral instruction to the jury. During closing arguments, the following colloquy occurred:

[Orr’s counsel:] “In the same regard, I believe the Court will instruct, and I won’t go through them, that there are State and Federal statutes which require a driver in this situation to have those warning devices.”
[Dirksen & Kois Bros.’ counsel:] “I object. There is no testimony whatsoever that those flares are required in this situation, and it’s not in any instruction.”
The Court: “I’ll sustain as to the word ‘in this situation.’ It’s just the opposite, as a matter of fact. The Court will read the law to you. I will sustain the objection.”

Subsequently, the trial court did in fact instruct the jury that State and Federal statutes require a truck driver to carry emergency warning devices.

We agree with Orr that the trial court erred in sustaining the objection to counsel’s comment and in stating “it’s just the opposite, as a matter of fact.” However, we cannot say that the comment was an oral instruction since the court specifically stated that it would instruct the jury on the law in the future. In addition, we do not believe that the comment constitutes reversible error since, as stated above, the court did give the instructions to the jury together with the other applicable law in the case.

Orr relies on Kinser v. Kruse (1972), 4 Ill. App. 3d 987, 283 N.E.2d 120, in which a judgment was reversed and remanded for a new trial because of the trial court’s hurried and indistinct reading of the instructions. In addition, when a juror commented that he could not hear the instructions, the court stated, “This is not really for you. This is mostly for the court reporter now.” (4 Ill. App. 3d 987, 988.) The situation in Kinser is certainly distinguishable from the facts in the instant case.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRESENCIANO SANCHEZ et al., Defendants-Appellants.
    First District (5th Division)
    No. 80—2550
    Opinion filed November 29, 1982.

      Steven Clark, James E Holderman, William T. Barker, and Patti A. Velasquez, all of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Bruce A. Cardello, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendants Cresenciano Sanchez and Jose Garcia Huerte (Garcia) were each charged with aggravated kidnaping, rape, and indecent liberties with a child. The charges stem from an incident in which the defendants, aged 26 and 30, were alleged to have forcibly abducted a 14-year-old complainant from a street corner in the vicinity of her home in Chicago and then raped her at an area in Illinois near the Indiana border. Following separate jury trials, Sanchez was acquitted of the charge of indecent liberties with a child, but neither jury was able to reach a verdict on any other charge.

Prior to retrial the State filed a motion to consolidate defendants’ cases for a joint trial. At the hearing on this motion defendants alleged that their defenses were antagonistic because both defendants had testified at the first trial and that the testimony of each inculpated the other. The State conceded that Garcia had made a statement inculpating Sanchez but promised to refrain from introducing it at a subsequent joint trial. The trial court concluded that separate trials were not warranted and granted the State’s motion.

Following their second trial on the charges of aggravated kidnaping and rape before a single jury, Garcia and Sanchez were acquitted of kidnaping and were found guilty of rape, and were sentenced to respective sentences of 10 and 9x/2 years imprisonment.

On appeal, defendants contend that: (1) they were not proved guilty beyond a reasonable doubt; (2) the trial court erred in refusing to instruct the jury of the need for corroborating evidence; (3) the trial court erred in denying defendants’ motion for appointment of an expert witness; and (4) the trial court erred by granting the State’s motion for joinder of the defendants’ cases for trial.

At the second trial, the complainant testified that at approximately 4 p.m. on April 3, 1978, she was waiting to meet her sister at the intersection of Damen, Milwaukee and North Avenues. A red Mustang car pulled up to the curb where she was standing. Garcia was driving while Sanchez rode on the passenger side. Sanchez asked her if she wanted a ride, to which she replied “No,” whereupon defendants drove away.

After the car departed, complainant went inside a corner drugstore, stood there for a while, then returned to the corner to wait for her sister. After she returned to the street, defendants returned in the red Mustang. Sanchez left the car, approached her and pressed a sharp object against her side and told her to get in the car. When complainant refused, he pushed it a little harder and told her, again, to get into the car, causing her to get into the car’s front seat. Sanchez then got into the rear seat. Although there were numerous people on the street, complainant made no attempt to cry out or call for help.

Once in the car, Garcia asked complainant her name but she refused to answer. The car then pulled away from the curb as Sanchez held the sharp object to her side.

Complainant related that defendants drove her to a liquor store where Garcia got out of the car, saying “Don’t try anything because it wouldn’t work.” Garcia went into the store. Complainant testified that it was at this time that Sanchez, seated behind her, showed her the knife he had been holding to her side. She described it as a black- and red-handled switchblade which appeared sharp. Garcia returned to the car with a bag containing beer, and they departed in the car.

As they were driving Garcia tried to make her drink some beer by pushing it into her mouth. Garcia drove the car around side streets while the defendants each drank six beers, prompting them to later stop at another liquor store. There, Garcia got out, warned complainant, “Don’t forget, don’t try anything,” and entered the store to purchase more beer.

When Garcia returned, they drove again, first traveling through side streets, then to an expressway. At this time it was starting to get dark. They later exited the expressway and went to a house, later identified as Garcia’s residence in East Chicago, Indiana. They arrived in the dark. There, defendants told complainant to get into a parked pickup truck outfitted with a camper. This vehicle was owned by Sanchez.

Complainant testified that the group then departed the house with Sanchez driving and complainant seated in the middle of the front seat between the defendants. They proceeded down a dirt road, where the complainant observed a drive-in movie and a truck stop, and stopped at a muddy, deserted field. Although she did not know where they were at the time, it was later determined that they were stopped at Wolf Lake, in Illinois, near the Indiana border.

Complainant saw no one else at the lake area, and when the truck came to a stop, defendants ordered her to get out. It was dark out, and she did not know what time it was. Complainant got out of the van and tried to run away from defendants, but Garcia chased her and tripped her. Garcia then told her to take her pants off or he would rip them off. Complainant then began to struggle and Garcia began to kiss her on the face and neck, hurting her as he squeezed her breasts. He removed her pants, then his own. Garcia told complainant she had better be good or he would kill her. He then forced his penis into her vagina. Garcia then got off of complainant, told her she “wasn’t any good,” and stuck an object “up her vagina.” She knew this because she felt like it was tearing and ripping.

Complainant further testified that after Garcia removed the object, Sanchez approached and he also put his penis into her vagina, and that when Sanchez finished, each defendant then had intercourse with her a second time. The defendants dressed, told complainant to dress, grabbed her by the arm, and led her back inside the van. While inside the van Garcia had intercourse with her once again. Sanchez then attempted to have intercourse with her again but she curled up and pretended to be asleep.

According to her testimony, although she feigned sleep, she never actually did sleep that night. She explained that she did not attempt to escape because both defendants were sleeping positioned against the back door of the camper. She claimed that as a result of the occurrences, she was muddy and disheveled. At the time of the incident she was five feet seven inches tall, weighing 175 pounds. By her own testimony, Garcia was shorter than she was, weighing 35 pounds less. Sanchez was of approximately the same height as the complainant and weighed 10 pounds more than she did. She stated that at no time during the intercourse by one defendant did the other defendant hold or touch her.

She further testified that upon awakening on April 4, 1978, the defendants drove her back to Garcia’s residence. There, she saw Miguel De Leon, but made no attempt to cry out or to escape to him. After returning to the house, Garcia and complainant got back into the red Mustang. Garcia began to drive around, eventually coming to a liquor store, also in East Chicago, Indiana. Garcia parked the car right in front of the store. The distance from the doorway of the liquor store to the parked car was approximately six feet. Garcia told the complainant not to try anything because he would be watching her, and he could see her from the inside of the store. He then went into the liquor store. She could see Garcia in the store from where she was sitting in the car, and she made no attempt to escape, cry for help, or lock the car doors at that time.

Garcia returned to the car and drove complainant to an expressway underpass. He stopped the car and told her to get into the back seat, also telling her that it would not have to be like the night before, that she did not have to fight, and that it could be better. Garcia then left the car to urinate, at which time complainant locked the door, started the car and drove directly into a pillar support below the expressway. Garcia, angered by this, was able to open the passenger door with an extra set of keys, whereupon he grabbed her and ordered her to get into the back seat.

At this time complainant saw a man walking a dog over across some railroad tracks. Telling Garcia that she had to “go to the bathroom,” she was allowed out of the car, at which opportunity she ran to the man, Felix Kenar, asking him to help her “because the man over there wanted to rape me again.”

Kenar took her to his sister’s house nearby. Complainant told Kenar she wanted to go home and did not ask him to call the police, although she said he offered to do so. She testified that she did not want the people to call the police because she was afraid of the defendant, and she “was too ashamed” and because she “didn’t want everybody to know.”

Kenar agreed to take her to the bus station, but when they began to drive away, Garcia returned, pulling his car up to block their exit. She stated that Garcia warned Kenar not to call the police, then he sped away. Kenar and complainant then proceeded to the bus station. Kenar bought her a bus ticket and gave her some money. She boarded a bus and eventually arrived in Chicago sometime in the afternoon on April 4, 1978.

According to her testimony, after she arrived in Chicago, complainant made an attempt to call her home collect, but the line was busy. She then went to the restroom in the bus station and tried to wash some blood off of her legs and again tried to call home, but again the line was busy, so she sat down. She explained that she was so exhausted from her sleepless ordeal that she fell asleep and did not wake up until the next morning when she once again tried to call home, and once again received a busy signal. Afterwards she left the bus station, where she encountered a police officer. She asked the police officer to direct her to the Milwaukee Avenue bus, and he did so, pointing out a bus stop approximately one or two blocks away. She at no time mentioned the fact of being raped to this policeman. She caught the bus after walking a block or two. She testified that she had only a $10 bill with her at the bus station, that she paid the bus driver with the $10 bill upon boarding the bus, and that he made change for her.

She rode the bus until she recognized the area around North Avenue. She got off the bus and began walking home. While en route, she was intercepted by her stepfather and two detectives. The two detectives drove her stepfather home, and then took her to a police station. Later, police officers took her to the hospital where her parents met her. There, she reported that her neck, breasts, vagina and side hurt.

At the hospital she was treated by two doctors. One of these doctors, Dr. Nagamani Ladella, testified at the trial. At the time of the examination, Dr. Ladella was a resident covering the emergency room and had treated one to five alleged rape victims. Dr. Ladella stated that the external examination of complainant revealed a bruise on the left side of the neck and some tenderness on the lower left side of the abdomén. The internal examination revealed a recent laceration, or tearing or rupture of the hymen, but no other lacerations or tearings in the vagina or genital area. A specimen taken using “basically” a vaginal wash revealed the presence of sperm.

Dr. Ladella observed one live sperm and some dead sperm. The presence of sperm in the vaginal smear indicated that complainant had had sexual intercourse prior to the examination. Dr. Ladella stated that if the specimen came from inside the cervix, this indicated sexual intercourse within five days prior to the examination. However, if the sample was from the vagina, sexual intercourse must have occurred during the 12 hours prior to the examination. Dr. Ladella conceded that although the specimen was obtained “basically” from the vagina, the live sperm could have come from the cervix.

Testimony at trial also established that after the complainant was released from the hospital, she went home with her mother, where she spoke with Youth Officer Bonnie Doyle. She told Officer Doyle what had happened to her and gave the officer the name and phone number of Kenar. She also gave detailed descriptions of the defendants, the red Mustang, and the pickup and camper. She also stated to Officer Doyle that she had told Kenar that a man had attempted to molest her.

On April 13, 1978, complainant spoke with Sergeant Donald Korte. On April 17, 1978, Sergeant Korte took her to East Chicago, Indiana. There, she identified the house where she had been taken and an adjacent brick or cinder block wall, each of which she had previously described to the police. She also pointed out the liquor store to which she had been taken by Garcia on April 4, 1978. She also spotted a man at the house, whom she identified as the man she had seen Sanchez speaking with on the morning of April 4, 1978, before she left with Garcia. This man was identified as Miguel De Leon.

On April 28, 1978, Sergeant Korte returned to the complainant’s home and presented her eight photographs. From these, she picked out a photo of Garcia as one of her attackers. Sergeant Korte returned on May 11, 1978, and showed her another group of photographs, from which she selected a picture of Sanchez. The following day she identified Sanchez in a lineup at police headquarters. On May 17, 1978, Sergeant Korte again conducted a lineup at police headquarters, and at that lineup complainant identified Garcia. It was stipulated that both defendants were more than 14 years of age, and that neither had ever been married to the victim.

L. Herbert Capshew, the president of the corporation which provides the security guards at the Greyhound station, testified that on the day when complainant was supposed to have slept undisturbed through the night at the bus station, two guards were on duty at all times. He stated that guards have instructions to question any person who appears to be loitering around the bus station. Further, the guards are instructed to pay special attention to young people who may be runaways, especially young females. They will call the parents of a young person to verify their destination and to confirm they are not runaways. According to Capshew, the guards would not permit a young girl to sleep through the night at the bus station but would question her as to her presence.

Felix Kenar testified that he first encountered complainant as she was running or trotting at around noon on April 4, 1978. She asked him if he could help her “get away from a man,” whereupon he took her to his sister’s house located about 100 yards from where they met. He stated that at the moment he did not have a dog with him but that there were dogs in the yard at his sister’s house. He stated that complainant had run to him from a car parked under the Indiana toll road, and that she did not mention “rape,” and she did not appear to be muddy. He recalled that just as he was about to drive her to the bus station, a car pulled up blocking his egress. He stated that “a man got out and asked us to go back — to come with him. She didn’t want to go, so, then he asked me, do I want to get involved? I said no, I’m just taking her to the bus.” He testified further that this man did not threaten him nor tell him not to go to the police. Kenar also testified that at the time he was 71 years old and retired. He stated that after the man left, he took complainant to a bus station, gave her money, and told her to go home. He stated that complainant then gave him a phone number and told him she would let him know when she was home safely.

The testimony of Luis Berrocal, taken from the prior trial transcript, was read to the jury. Berrocal testified that on April 4, 1978, at 7:30 p.m. he saw Garcia, Sanchez and complainant walking in the direction of Garcia’s house. The girl was not crying or attempting to escape, but was walking behind them in a “tranquil” manner. Although he had testified to the contrary, he recalled having told the prosecuting attorney, outside the courtroom, that the girl’s pants were muddy and dirty.

Sergeant Korte testified regarding a conversation he had had with witness Kenar during which Kenar had related that complainant had told him that a man was “trying to molest her,” and that a man, namely Garcia, had told him not to call the police.

Opinion

Defendants’ contention that they were not proved guilty beyond a reasonable doubt is predicated on their assertions that the testimony of complainant is implausible where she made no effort to cry out for help, made virtually no effort to escape, and failed to report the alleged rape for more than a day after her “escape,” and that her testimony is contradicted by disinterested witnesses on virtually every point where such testimony is available.

The issue of the plausibility of the complainant’s testimony is ultimately a matter of credibility, a question best determined by the trier of fact who heard the evidence and observed the demeanor of the witnesses. (People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667; People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) A reviewing court will not upset the finding of the trier of fact unless the evidence, on the whole, is so unsatisfactory as to raise a reasonable doubt concerning the defendant’s guilt. (Barbour; Thompson.) The testimony of the complaining witness, if clear and convincing, is enough to support a conviction for rape (People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285; Barbour), and minor discrepancies in her testimony do not render it unconvincing. (People v. Szudy (1982), 108 Ill. App. 3d 599, 439 N.E.2d 137; Thompson.) However, if clear and convincing testimony is deemed to be lacking, corroboration is necessary to sustain a conviction. People v. Anderson (1974), 20 Ill. App. 3d 840, 314 N.E.2d 651.

Despite defendants’ contrary assertion, we find no inherent improbability in the complainant’s testimony. The record shows that her testimony was clear and the jury, as well as the trial court, found it convincing. We note initially that defendants have strongly argued that the instant case presents evidence as improbable as that which warranted reversal in People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865; however, even a cursory reading of the evidence summarized in that opinion reveals a situation wholly unlike the facts presented at bar. See 48 Ill. 2d 91, 99, 268 N.E.2d 865, 868-69.

Defendants note that complainant did not see a weapon when she was abducted nor at the time she was allegedly raped. There is no absolute standard setting the amount of force required to establish rape (People v. Sims (1972), 5 Ill. App. 3d 727, 283 N.E.2d 906) and each case must be determined on its own facts. (People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339.) Rape can be established by the threat of force which coerces the victim to engage in sexual intercourse, as well as by the actual use of force. (People v. Elder (1962), 25 Ill. 2d 612, 186 N.E.2d 27; People v. Smalley (1976), 43 Ill. App. 3d 600, 357 N.E.2d 93.) If the complainant’s testimony is believed, defendant Sanchez pressed a sharp object to her side and ordered her to get into the car driven by Garcia. The fact that she didn’t actually see the switchblade until after she had entered the car in our opinion makes her account of the events no less believable. Nor does the fact that she did not cry out to strangers nearby or at the liquor stores, or to Miguel De Leon, whom she encountered after the alleged rapes, render her story so unbelievable as to destroy her credibility. A rape victim is not required to make an outcry where it is useless or where she is restrained by fear of violence (People v. Jones (1976), 40 Ill. App. 3d 850, 353 N.E.2d 375), nor is she required to disclose the rape to the first stranger she meets immediately thereafter. (Barbour; Jones; Sims.) Furthermore, there is no fixed time limit within which a prompt complaint must be made. (Barbour; Secret.) In any event, the corroborated evidence here established that once free, complainant ran to Kenar for refuge, and that she immediately told her father and the police when she arrived home the next morning.

Defendants argue that the evidence is unconvincing because complainant failed to seize an apparent opportunity to escape on the morning after the alleged rape. Her testimony, however, revealed three separate escape attempts; one at the deserted lake area, another using Garcia’s car, and her final successful escape to passerby Kenar. The facts of this final escape are largely corroborated by Kenar’s testimony. In all, the circumstances of the complainant’s attempts to resist or escape must be assessed in weighing credibility, and we find nothing in complainant’s testimony here so improbable so as to destroy her credibility on these points. Regarding defendants’ belief that complainant’s size and weight destroy her credibility, we recognize that in a rape case it is proper to consider the disparity in size and strength of the parties (see, e.g., Barbour)-, however, this, too, was a matter for the jury’s consideration. Although complainant here is a rather large 14-year-old, having a 35-pound weight advantage over Sanchez, the evidence showed that she was pitted against two unknown older men who were armed with a knife, and who took her to a remote and deserted location at night. Moreover, according to her story, she was warned to be good or she would be killed. Under these circumstances the trier of fact might well have concluded that complainant held a distinct physical and emotional disadvantage as against her two captors so as to make effective resistance or escape improbable.

Defendants also contend that the record reveals very little to corroborate complainant’s story, and much which contradicts it. As noted above, the clear and convincing testimony by the complainant, even containing minor discrepancies, is sufficient to sustain a conviction for rape. (People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) We believe, however, that the complainant’s testimony not only satisfies this requirement, but that her story is well corroborated in many details throughout the record. From our review of the record before us, we conclude that the admissible evidence was more than sufficient to sustain the defendants’ convictions.

The next question is whether the trial court erred in refusing to instruct the jury of the need for corroborating evidence. The requested instruction read:

“If you find, from the evidence, that the testimony of [complainant] is not clear and convincing with respect to the alleged rape, you must find that there is corroborating evidence of rape.
If you find that the evidence does not corroborate the alleged rape, you must find the defendant not guilty of rape.”

The above instruction is a non-IPI instruction (see Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (hereinafter cited as IPI Criminal)), and there is no similar IPI criminal instruction. In the absence of an IPI criminal instruction, the decision whether to give a non-IPI instruction rests within the discretion of the trial judge. (People v. Blackwell (1979), 76 Ill. App. 3d 371, 394 N.E.2d 1329.) We find no error in the trial court’s refusal to give this instruction. The jury was properly instructed in the burden of proof required, namely that they had to find, beyond a reasonable doubt, that the defendants had committed the crime of rape. (IPI Criminal No. 2.03.) We think that the jury instructions given, taken as a whole, fully and fairly defined the applicable law, were sufficient, and under the circumstances did not cause prejudice to the defendants.

Defendants next contend that the trial court erred in denying the indigent defendants’ motion for appointment of an expert witness. (People v. Watson (1966), 36 Ill. 2d 228, 221 N.E.2d 645.) However, we are unable to reach the merits of this claim of error for the reasons set forth below.

At the commencement of the second trial, defendants moved for appointment of an expert medical witness. A similar motion had been denied by another trial judge prior to their earlier trials. According to appellants’ brief, this expert medical testimony was crucial to refute certain opinion testimony by Dr. Ladella regarding conclusions to be drawn from the presence of both motile and nonmotile spermatozoa in a specimen obtained from examination of complainant on April 5, 1978. Before ruling on the motion at the first trial, the former trial judge conducted a voir dire examination of the proposed defense witness, Dr. Gary Peterson. Following this examination the motion was denied. The record of those proceedings is not included in the record on appeal. It is the appellant’s duty to provide a complete record on appeal, and the judgment of the trial court is entitled to every presumption of validity when the record is incomplete. (People v. Butler (1976), 41 Ill. App. 3d 750, 354 N.E.2d 568.) For an assignment of error, the record must show error; hence, the record must be preserved since on review the reviewing court is restricted in its examination to the record. (People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944.) At the second trial, no offer of proof was made in support of defendants’ motion; thus, the record before us is insufficient to demonstrate the alleged error. Under such circumstances a reviewing court must refrain from speculation and decide accordingly. (Edwards.) We hold that defendants have not properly preserved the record for review. Given the insufficiency of the record, we therefore indulge in a presumption in favor of the trial court’s denial of the motion.

Finally, defendants contend that their conviction should be reversed since the trial' court erred in granting the State’s motion for joinder where the defenses were antagonistic. The State argues that the trial court properly joined the cases for trial since defendants’ defenses were not shown to be so antagonistic that a severance was required.

The general rule is that separate trials are required only when the defenses are so antagonistic that a fair trial can be achieved only through severance. (People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759.) Antagonistic defenses have been confined to situations where one or more codefendants testify implicating the other. (Murphy; People v. Jones (1980), 81 Ill. App. 3d 724, 401 N.E.2d 1325.) It is incumbent on the defendant to actively and specifically point out the antagonism and to show the trial court how it would be prejudiced by a joint trial. (People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) The power to grant a severance is discretionary with the trial court, and this discretion should not be exercised arbitrarily, capriciously or in such a way as to work an injustice. (Murphy.) On review, we must judge the trial court’s ruling on the basis of the sufficiency of petition requesting severance, considering also the representations of counsel made at the hearing on the motion. People v. McMullen (1980), 88 Ill. App. 3d 611, 410 N.E.2d 1174; Jones.

Defendants’ position is that allegations and arguments presented by them on the motion for joinder were sufficient to show the antagonism between their defenses. At the hearing each defendant referred to his earlier trial testimony. Sanchez had previously testified that on the evening in question he, the complainant, and Garcia had all driven in his pickup truck to a lake in Indiana. He remained there until 2 a.m., at which time he departed, leaving Garcia and the complainant in the back of the truck. He returned to the scene at 6 a.m. and found Garcia and complainant asleep in the truck.

Garcia testified at his earlier trial that he, Sanchez and complainant were at the lake area on the night in question, that he reclined in the front seat of the truck and fell asleep for an unknown time, and that after he awoke, he observed Sanchez and complainant, clothed and reclined, in the back of the truck. To the best of his knowledge Sanchez did not engage in sexual intercourse with complainant. He also testified that complainant stated “that she did not want to be in there” (the truck), and that “Mr. Sanchez wanted to do something bad to her.”

Defendants claim that the latter statement shows that their defenses were antagonistic. A confession or admission by one defendant incriminating the other is ground for severance unless the State promises either to avoid introducing the statement into evidence or to delete all references to the other defendant. (People v. Allen (1976), 36 Ill. App. 3d 821, 344 N.E.2d 825.) Here, the State, in its motion for joinder, promised not to introduce Garcia’s statement, and in view of its assurances the statement was not grounds for severance.

At the hearing on the motion, and in argument before this court, defendants contend their situations are analogous to the defenses held to be antagonistic in Jones. We do not agree. In Jones, the defendant’s petition for severance alleged that a codefendant, Newbern, would testify that defendant was present at the scene, of a theft, while defendant would testify that he was not present at the time the crime was committed. There was evidence that the theft occurred at around 3 p.m. on a particular day. Newbem’s testimony, thus, not only placed the defendant at the scene of the crime, but directly contradicted his defense of alibi. Jones’ defense counsel argued to the trial court that the evidence was expected to show a strong inference that one of the two persons took the money. The appellate court concluded that the representation of defense counsel showed that there would be an issue as to defendant’s presence at the scene and in view of the nature of the circumstantial evidence, the issue would likely be determinative, and would ultimately imply defendant’s guilt.

No such showing was made by defense counsel here. Initially, unlike Jones, where the evidence and circumstances suggested that one of two defendants committed the theft, the instant case presents a situation where each defendant is alleged to have committed separate acts of intercourse with complainant during the course of the night in question. Thus, we find no reason to conclude from the testimony of either defendant that one of the two necessarily committed rape because we chose to believe the other. Moreover, in Jones, the determination that the defenses were antagonistic stemmed largely from the fact that the codefendant contradicted Jones’ defense of alibi. (See People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759.) Here, however, both defense counsel indicated at the hearing that Garcia and Sanchez would testify that both were present at the scene of the alleged rapes, although they disagree as to their activities and as to the sequence of events during their presence there. Thus, in our opinion neither defendant was shown to have established a potent alibi defense. See generally People v. Fritz (1981), 84 Ill. 2d 72, 417 N.E.2d 612.

In Jones, the court recognized that there are, indeed, no hard and fast rules as to when severance should be granted in a criminal case, and that each situation should be judged on its own facts. (People v. Jones (1980), 81 Ill. App. 3d 724, 728, 401 N.E.2d 1325, 1329.) We have carefully considered the representations of the parties made at the hearing on the State’s motion for joinder. From the record we do not feel that defendants have made the required showing that their defenses were so “antagonistic” so as to require severance. Accordingly, the trial court did not err in granting a joinder.

For the foregoing reasons, the judgment of the circuit court is hereby affirmed.

Affirmed.

SULLIVAN, P.J., and LORENZ, J., concur.


author: JUSTICE HARTMAN

text:
    GEORGE NEUMAN, Adm’r of the Estate of John J. Neuman, Deceased, Plaintiff, v. THE CITY OF CHICAGO et al., Defendants.-(The City of Chicago et al., Counterplaintiffs-Appellants, v. Northwest Hospital, Counter-defendant-Appellee.)
    First District (2nd Division)
    No. 81—1703
    Opinion filed November 30, 1982.
    Stanley Garber, Corporation Counsel, of Chicago (Peter Fitzpatrick, Special Assistant Corporation Counsel, and Richard F. Lee, of counsel), for appellants.
    Hinshaw, Culbertson, Moelman, Hoban & Fuller, of Chicago (Stanley J. Davidson, E. Michael Kelly, and John G. Langhenry, Jr., of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The principal issue presented by this appeal is whether defendantcounterdefendant Northwest Hospital (Hospital) “is responsible for the consequences of [its] own wrong, and if [defendant-counterplaintiff City of Chicago is] compelled to pay damages which ought to have been paid by the [Hospital, the City] may recover from [it].” Gertz v. Campbell (1973), 55 Ill. 2d 84, 90, 302 N.E.2d 40.

For the reasons hereinafter set forth, we reverse and remand the cause.

On October 14, 1977, plaintiff, George Neuman, administrator of the estate of John J. Newman, deceased, initiated a three count wrongful death action against the City, two City police officers, Philip Onesto and William Sims (collectively “City”), and the Hospital. Count I was directed against the City and alleged that decedent was handcuffed, arrested, and apprehended by the named officers. The officers, while acting within the scope of their duty as • agents of the City, allegedly committed wanton acts of violence in that they: shot the deceased when they knew or should have known that it was totally unnecessary because he was handcuffed; used a gun which contained bullets that had been doctored and altered and thereby intended to inflict excessive destructive injury; and exercised unnecessary violence in shooting the deceased, showing a total disregard for the safety and care of the public. The City was charged further with having failed to discharge Onesto from the police force after having been repeatedly notified of his vicious propensities and the likelihood of inflicting unnecessary and excessive violence on members of the public. Finally, count I alleges that defendants’ shooting of the plaintiff’s intestate ultimately caused or contributed to his death at the Hospital.

Count II was directed against the Hospital, to which decedent was brought for emergency treatment. In essence, the Hospital was charged with having committed eight specified negligent acts or omissions in connection with the failure to give decedent necessary blood transfusions and other medical care which resulted in his death. Count III repeated the same allegations of medical malpractice asserted in count II but added that these acts were committed “wantonly.” Count II prayed for, inter alia, $500,000 in pecuniary damages and punitive damages of $1,000,000. Count III prayed for $1,000,000 in punitive damages.

The Hospital successfully moved to strike the prayers for punitive damages from counts II and III of the complaint on October 15, 1979, and the circuit court ordered that the judgment would not prejudice plaintiff’s prayer for compensatory damages.

On March 14, 1981, the City filed a counterclaim against the Hospital, incorporating by reference, inter alia, the same allegations of negligence and wanton misconduct set forth in paragraph 2 of counts II and III, respectively, of the underlying complaint. The counterclaim further alleged that: the specified negligent and wilful acts or omissions alleged against the agents and servants of the Hospital were not committed in concert with the City; the City did not control the activities of the Hospital in connection with these acts; and, but for the Hospital’s negligent and wilful acts or omissions, decedent would have recovered from his injuries.

The Hospital moved to dismiss the counterclaim, principally on the basis that the City may not seek equitable apportionment of damages because it was charged with intentional, wilful and wanton conduct by plaintiff. On June 19, 1981, the circuit court granted the Hospital’s motion.

A motion to dismiss a counterclaim admits that all facts properly pleaded are true. (City of Chicago v. Loitz (1975), 61 Ill. 2d 92, 93, 329 N.E.2d 208; Jackson v. Burlington Northern, Inc. (1980), 84 Ill. App. 3d 967, 968, 405 N.E.2d 805; American Mutual Reinsurance Co. v. Calvert Fire Insurance Co. (1977), 52 Ill. App. 3d 922, 924, 367 N.E.2d 104, cert. denied (1978), 436 U.S. 906, 56 L. Ed. 2d 404, 98 S. Ct. 2238.) A cause of action should not be dismissed on the pleadings unless it manifestly appears that no set of facts can be proved upon which relief can be granted. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 305, 312 N.E.2d 259.) The City denied all material allegations contained in the underlying complaint and their counterclaim continues to deny these allegations. The City’s counterclaim raises allegations against a codefendant, not against plaintiff. Plaintiff did not join in the Hospital’s motion. Under these circumstances and in light of the above-cited principles, the Hospital’s contention, that in reviewing the sufficiency of a counterclaim all well-pleaded allegations contained in the underlying complaint must also be taken as true, is without merit.

The City maintains that the counterclaim states a valid cause of action for equitable apportionment as established in Gertz v. Campbell, and does not rely on “An Act in relation to contribution among joint tortfeasors” (Act) (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). In Gertz, plaintiff alleged that he was injured by defendant’s negligent operation of an automobile. Defendant filed a third-party complaint against the physician who treated plaintiff after the accident seeking indemnity for any damages attributable to the physician’s malpractice. Applying principles of “conscience,” the supreme court allowed the third-party complaint to stand, upon the “principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him.” Gertz v. Campbell (1973), 55 Ill. 2d 84, 90, quoting with approval from Herrero v. Atkinson (1964), 227 Cal. App. 2d 69, 74, 38 Cal. Rptr. 490, 493.

The Hospital attempts to distinguish Gertz, in part, on the ground that there the malpracticing physician was not named in the original lawsuit by plaintiff; therefore, the original tortfeasor stood to pay damages for the entire extent of the injury while the physician paid nothing. The Hospital argues that here, because it is'a named party, the jury will be asked to return separate verdicts and that the jury will apportion the damages between the City and the Hospital, even ■without a counterclaim. This distinction fails, however, since the City can be held liable for any mortal injury inflicted by the Hospital whether or not separate verdicts are returned. Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274, 277, 72 N.E. 755.

More importantly, the Hospital emphasizes that the original tortfeasor in Gertz was alleged to have committed ordinary negligence, but the City here is accused of wilful or intentional misconduct thereby precluding it from seeking equitable apportionment. The Hospital urges that Gertz should not be extended to a city charged with wantonly shooting a handcuffed person with a gun containing bullets intended to inflict excessive destructive injury.

The Hospital correctly asserts that an intentional tortfeasor is without standing to invoke equity and request a court to shift the burden of the loss to another. (Cf. Wanack v. Michels (1905), 215 Ill. 87, 94-95, 74 N.E. 84; Turner v. Kirkwood (10th Cir. 1931), 49 F.2d 590, 595-96; Skaja v. Andrews Hotel Co. (1968), 281 Minn. 417, 423, 161 N.W.2d 657, 661.) This court cannot presume, however, that any of the allegations contained in the underlying complaint will be proven, including those alleging that the City acted intentionally. A “ ‘wilful or wanton’ ” injury may either have been intentional or the act may have been committed under circumstances exhibiting a reckless disregard for the safety of others. (Hocking v. Rehnquist (1969), 44 Ill. 2d 196, 201, 254 N.E.2d 515.) Whether wilful and wanton conduct has been proven in any given case demands close scrutiny of the facts as disclosed by the evidence and, while the rule of law remains constant, the facts to which the law is applied always present unique circumstances. (Lynch v. Board of Education (1980), 82 Ill. 2d 415, 430, 412 N.E.2d 447.) The City may be found guilty of reckless rather than intentional misconduct, and thereby would have standing to maintain its action for equitable apportionment. Because of the necessity to closely peruse the facts of each case, whether plaintiff has proven intentional wrongdoing on the part of the City must await trial. See O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015; Lynch v. Board of Education.

The Gertz court stressed several factors concerning the relationship between the tortfeasors in that case, among which were that: (1) the original tortfeasor was liable at law for the subsequent negligence of the other; (2) the parties were not joint tortfeasors; (3) they did not act in concert; (4) the wrongful conduct and injuries were sustained at different times; and (5) the original tortfeasor lacked control over the acts of the subsequent tortfeasor. (Cf. Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 14-15, 425 N.E.2d 1359.) Many of the foregoing considerations are present here to favor the City’s right to indemnity. The City is liable for the fatal aggravation of injury caused by the Hospital (Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274, 277); yet it had no control over the Hospital’s misconduct. The City did not act in concert with the Hospital. The wrongful conduct and the injuries were sustained at different times. If at trial, the evidence demonstrates that “reckless” as opposed to “intentional” misconduct was committed by the City, then the Gertz factors favoring the City’s right to apportionment override countervailing considerations.

The Hospital argues that under traditional equitable apportionment analysis, death is indivisible, and therefore, where the ultimate injury is death, equitable apportionment will not lie, citing Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 614, 422 N.E.2d 979. In that case, decedent’s wife brought a wrongful death action against the manufacturer of the helmet decedent was wearing at the time of the fatal accident and the driver of the automobile who hit him. After plaintiff settled with the driver, the helmet manufacturer filed a third-party complaint against the driver seeking, inter alia, equitable apportionment of damages. The court found that the claim for equitable apportionment failed, in part, because the sole injury involved there, death, was indivisible. (97 Ill. App. 3d 610, 614.) It is entirely possible for the fact finder in the present case to find that the wound or wounds inflicted by the City was or were mortal, in which case the Van Jacobs rationale would apply. If, in contrast, in the instant controversy the initial damage inflicted was not mortal, but involves two distinct injuries which occurred at separate points in time, then simply because the second injury happened to be fatal would not by itself bar an action for equitable apportionment. (See Herrero v. Atkinson (1964), 227 Cal. App. 2d 69, 38 Cal. Rptr. 490; and Rezza v. Isaacson (1958), 13 Misc. 2d 794, 178 N.Y.S.2d 481, both of which involved wrongful death actions.) The resolution of this issue must also await trial.

The Hospital argues that the circuit court’s order striking the prayers for punitive damages against it should be read to encompass striking of the allegations of wilful and wanton misconduct against it as well. This argument is without merit. An order must be interpreted within the context of the motion through which it was initiated. (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 793, 424 N.E.2d 911, appeal denied (1981), 85 Ill. 2d 577; Ferracuti v. Ferracuti (1975), 27 Ill. App. 3d 495, 498, 326 N.E.2d 556.) Defendant’s motion to strike plaintiff’s prayer for punitive damages was based, in part, upon the contention that punitive damages are not recoverable under a survival action nor generally under a common law action for wrongful death, relying on Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509. The prayer for punitive damages was not striken because the complaint did not properly plead wilful and wanton misconduct. Whether, as the Hospital argues, since this prayer was striken there is no reason for plaintiff to attempt to sustain the greater burden of proving wilful and wanton misconduct is entirely conjectural and, in any event, has nothing to do with the City’s counterclaim and the issues raised therein.

The Hospital finally contends that the counterclaim does not properly plead wilful and wanton misconduct against it, relying on Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 492-93, 411 N.E.2d 910, among other authorities. It cannot be said that the allegations in this count, expressly incorporated into the City’s counterclaim, fail to establish the Hospital’s reckless disregard for plaintiff’s safety. (Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 377-78, 437 N.E.2d 774.) By virtue of the need to closely examine the facts of each case, the City should be permitted to present evidence in support of its allegations of wanton malfeasance. O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462.

A pleading must show only the possibility of recovery, not an absolute certainty, and it should not be dismissed unless it appears that the pleader in no event would be permitted to recover. (Miller v. DeWitt (1967), 37 Ill. 2d 273, 287-88, 226 N.E.2d 630; Badorski v. Commonwealth Edison Co. (1980), 89 Ill. App. 3d 494, 496, 411 N.E.2d 924.) Since the City’s counterclaim against the Hospital demonstrates the possibility for recovery upon the theory of equitable apportionment, its dismissal was erroneous and must be reversed and the cause remanded with directions to reinstate the City’s counterclaim.

For the foregoing reasons, we reverse and remand.

Reversed and remanded.

DOWNING and BERLIN, JJ., concur.

        Cf. National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919; Fraud v. Celotex Corp. (1982), 107 Ill. App. 3d 654, 437 N.E.2d 910, appeal allowed (1982), 91 Ill. 2d 569.

      The counterclaim incorporated that part of count III of the underlying complaint alleging that the Hospital wantonly failed: to provide human, life-saving care under the circumstances which they knew or should have known were needed had it desired to alert itself; to take appropriate emergency measures after being advised that decedent was in critical condition; to alleviate a known blood loss emergency to decedent; to heed the admonition of police, physicians and lay persons of the emergency need for blood transfusions; to render the best hospital and medical care in contravention of its own bylaws accreditation standards and custom in the Chicago area; to afford critically ill patients qualified specialists to handle emergencies; to inform the delivering police that its staff was either unqualified to handle blood loss problems or was unable to do so; and, to comply with the Hospital Licensing Act.


text:
    ANTHONY AGNELLO, a Minor, by his Father and Next Friend, Frank Agnello, et al., Plaintiffs-Appellants, v. PHILIP J. PUZZO, Defendant-Appellee.
    First District (2nd Division)
    No. 81—2351
    Opinion filed December 7, 1982.

      Carl J. Cipolla, of Baskin, Server & Berke, of Chicago, for appellants.
    Lloyd P. Douglas, of Douglas & Brewer, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs, Anthony Agnello, a minor by his father and next friend, Frank Agnello, and Frank Agnello, individually, sued defendant, Philip Puzzo, for the injuries Anthony sustained when defendant’s car struck him, and the damages thereby incurred. A jury found defendant not guilty. The principal issue on appeal is whether the circuit court erred in not granting plaintiffs’ motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.

Plaintiffs’ and defendant’s accounts of the accident differ substantially. Even accepting defendant’s account as true and accurate, however, we conclude that the jury’s verdict cannot be allowed to stand and the cause must be reversed and remanded with directions.

Defendant testified under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60) (now section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102)), that the accident occurred at about 1 p.m. on June 28, 1976, at the intersection of Pine and Elmhurst in Wood Dale. It was a sunny day; the streets were dry; his windshield was clear; his horn was working; and his brakes were in good condition. Puzzo was alone in his car eastbound on Elmhurst at about 20 m.p.h. As he approached Edgewood, one block west of Pine, he saw a group of 10 or 15 children crossing Elmhurst southward between Edgewood and Pine. He slowed down to about 10 m.p.h. so that they could cross safely in front of him. As he was slowing down he saw an ice cream truck as it was making a left turn from northbound on Pine to westbound on the south side of Elmhurst. It pulled up and parked on the southwest corner facing west, occupying part of the eastbound traffic lane. After it parked, he saw about 10 people at the comer gathering around it. They were some of the same children who had crossed the street in front of him.

As he approached Pine, Puzzo sounded no horn but slowed down to about 5 m.p.h. He eased to the left of the roadway center to pass the track, which was parked on Puzzo’s side of the road. Just as he was passing, Anthony ran from behind the truck at a point about six feet in front of him. Puzzo was unable to bring his car to a stop before hitting Anthony with the center of the front of his car which was then in the westbound traffic lane. His car went over Anthony’s body. He didn’t want to stop there and continued eastward past Pine and parked on the south side of Elmhurst. He did not mention the presence of the ice cream truck to investigating police. He thought it was still there when police came.

Anthony’s mother, Joanne Agnello, testified that he was six years old on the date of the accident. The family lived in a house on the north side of Elmhurst, between Edgewood and Pine, closer to Pine. She was at home when she heard a “terrible screech” and ran outside toward the street. A neighbor’s boy screamed “Tony.” She saw a car go eastward past her driveway and she yelled at neighbors to stop the car. Her property had 150 feet of frontage and she saw Anthony lying on the street two feet to three feet from the north curb at the west end of the property. Anthony was bruised, scraped and bleeding, and had a tire mark across his shoulder. The car stopped on the south side of Elmhurst west of Pine.

Anthony testified that he was on his way home to get “ice cream money,” crossing Elmhurst from south to north and was about three feet from the north curb when he was hit by a car. Although he looked before crossing, he did not see the car before it struck him and had at first thought he had tripped. The ice cream truck was west of his house, on the southwest corner of Edgewood and Elmhurst at the time of the accident.

Shirley Gretza, who lived across the street from the Agnellos, testified that the accident occurred near the comer of Edgewood and Elmhurst. Elmhurst was a two-lane street, east and westbound. She and her children were buying ice cream from a track at the corner of Edgewoqd and Elmhurst before the accident. The two Agnello boys were with them. She was walking backwards when she saw Puzzo approach at about 40 m.p.h. His car was in the westbound traffic lane when he hit Anthony. He did not blow his horn or slow down before the accident and didn’t come to a stop until he had passed Pine, a block down the street. Anthony was about two feet from the north curb when he was struck by the front of Puzzo’s car, on the driver’s . side.

Plaintiffs argue that even if Puzzo’s account is accepted as true, the facts, when viewed as a whole, overwhelmingly show that Puzzo had been negligent and that his negligence was the proximate cause of the accident. Puzzo argues that the verdict rendered in his favor was not against the manifest weight of the evidence and that the jury, moreover, could have concluded that the testimony of plaintiffs’ witnesses, especially Gretza, should be accorded no weight whatsoever.

It is singularly within a jury’s function to determine factual issues such as the care exercised by the parties and the proximate cause of the accident and injuries in a case such as this. (Jardine v. Rubloff (1978), 73 Ill. 2d 31, 43, 382 N.E.2d 232; Lode v. Mercanio (1979), 77 Ill. App. 3d 150, 154, 395 N.E.2d 1014.) The question of defendant’s negligence becomes a matter of law only where reasonable men of fair understanding would agree that defendant in the operation of his automobile at the time and place in question was guilty of negligence. Kocour v. Mills (1959), 23 Ill. App. 2d 305, 311, 162 N.E.2d 497.

The standard which a trial court must apply in considering a motion for a directed verdict or a judgment n.o.v. was clearly set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504. Verdicts may be directed and judgments n.o.v. granted only where all the evidence, when viewed in the light most favorable to the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict based upon the evidence could ever stand. We find this circumstance to exist in the case at bar under the evidence submitted.

Illinois follows the common law rule that a child, such as Anthony, under the age of seven years, is conclusively presumed not to be responsible for his acts. (See, e.g., Wolezek v. Public Service Co. (1930), 342 Ill. 482, 493, 174 N.E. 577; Illinois Pattern Jury Instructions, Civil, No. 11.03 (2d ed. 1971).) The jury was so instructed in the case sub judice. It is also the law in this State that the violation of a public safety statute is prima facie evidence of negligence and is actionable where it is the proximate cause of plaintiff’s injury. (Ding v. Kraemer (1978), 59 Ill. App. 3d 1042, 376 N.E.2d 266.) Where an ordinarily prudent person would have foreseen that someone might very likely be injured if the statute is violated, its violation may be considered as the proximate cause of the injury. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 78, 80, 117 N.E.2d 74.) Taking Puzzo’s own testimony as true, in driving around the ice cream truck, into the wrong lane of traffic, at or near the intersection, with children nearby, he violated two such statutes (Ill. Rev. Stat. 1979, ch. 95V2, pars. 11— 601(a), 11 — 706(a)(2)). Section 11 — 601(a) provides in relevant part that: “No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property.” Section 11 — 706(a)(2) provides that “No vehicle shall be driven on the left side of a roadway *** [w]hen approaching within 100 feet of or traversing any intersection or railroad grade crossing.”

Just as defendant’s presence on the left-hand side of the road within 100 feet of an intersection was held to have been the proximate cause of the accident that resulted in Grass v. Hill (1981), 94 Ill. App. 3d 709, 418 N.E.2d 1133, so too Puzzo’s presence on the left-hand side of the intersection in the instant case was clearly the proximate cause of plaintiff’s injury. See also Leonard v. Pacific Inter-mountain Express Co. (1976), 37 Ill. App. 3d 995, 347 N.E.2d 359.

Accepting, arguendo, defendant’s insistence that plaintiffs’ witnesses were without credibility, from Puzzo’s testimony it is evident that he was fully aware of the fact that children were in the vicinity, that he saw the ice cream truck in sufficient time to bring his car to a halt in front of it, and that he chose instead to swing around it into the wrong lane of traffic as he reached the corner, where pedestrians would hardly expect a vehicle to be. In addition, Puzzo admits that he never sounded his horn to alert the children whom he had seen gathering around the ice cream truck that he was approaching. Under these circumstances, a child coming from behind an ice cream truck, where other children were seen by Puzzo to have gathered, is an anticipatable danger to a motorist which he must be prepared to avoid, as the court concluded in Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 351 N.E.2d 624, a case very similar to the instant one in which the defendant struck and killed a little girl who had run out from behind an ice cream truck. The fact that Puzzo did not see Anthony in time to avoid hitting him does not exonerate him.

The conduct of children is often unpredictable and one operating his vehicle under such circumstances should anticipate their thoughtlessness and impulsiveness, and thereafter be alert to the potential danger. (Stowers v. Carp (1961), 29 Ill. App. 2d 52, 64-65, 172 N.E.2d 370, appeal denied (1961), 20 Ill. 2d 629.) It was his duty in the exercise of reasonable care to give warning of his approach, which Puzzo admittedly failed to do, and to keep those children under such observation and his automobile under such control that he would not run over them, which events proved Puzzo also failed to do. (Stemkowski v. J. H. Patterson Co. (1944), 324 Ill. App. 318, 58 N.E.2d 463.) Also notable is the fact that the child here had nearly traversed the entire width of the car and was within several feet of crossing the street entirely when he was struck by the front end of defendant’s auto. Under the foregoing circumstances, a driver traveling at five miles per hour, as Puzzo claimed to be, who first saw the child six feet away from his car yet could not stop without running over the child, cannot be said to have had his vehicle under the requisite control. Reasonable persons could not have concluded otherwise. (Kocour v. Mills; Grass v. Hill.) Particularly is this true where, as in the present case, testimony of other witnesses demonstrate greater, rather than less, culpability on defendant’s part. The evidence here overwhelmingly favors plaintiffs, and no contrary verdict can be allowed to stand. Pedrick v. Peoria & Eastern R.R. Co.

Defendant cites and relies upon Hernandez v. Lukas (1982), 104 Ill. App. 3d 692, 432 N.E.2d 1028, to sustain his position. That case is inapposite in its facts. There the driver was on the proper side of the roadway, in midblock, behind other moving traffic, circumstances significantly different from those at bar.

For the foregoing reasons, the jury’s findings in the present case that defendant was not guilty must be vacated. Accordingly, we reverse and remand the cause and direct that the verdict be vacated, judgment on liability be entered for plaintiffs and a new trial granted on damages.

Reversed and remanded with directions.

STAMOS, P.J., and PERLIN, J., concur.