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Moore v. Amerson11/22/2000
JUDGMENT AFFIRMED.
This is an appeal from an order of Judge Daniel O. Corrigan granting a directed verdict in favor of appellee Elizabeth Amerson and against appellants Kashiff Moore, a minor, and his custodial grandparents, on the child's claims for personal injury arising out of an automobile collision. The Moores claim it was error to invade the province of the jury by making credibility determinations and weighing the evidence at the close of their case. Amerson maintains that the directed verdict was proper because the Moores failed to introduce any evidence that she should have seen the child dart into the street and also failed to introduce evidence that she should have been able to stop in time to avoid the accident. We affirm.
From the record we glean the following: At about 7:25 p.m. on August 1, 1996, Kashiff Moore, then one week past his sixth birthday, was walking southbound on the east sidewalk of Green Road in Warrensville Heights with two or three girls ranging in age from nine to twelve years. The children had been to a candy store and were returning to one of the girls' home. The group stopped between Gary Street and Vera Street and stood on the tree lawn preparing to cross Green Road. At the same time Amerson, in the company of several passengers, was driving her car southbound on Green Road toward its intersection with Miles Avenue. Moore, who had been holding one of the older girls' hands, let go and began to run across the street. He crossed the northbound lane, but was struck by Amerson's car and sustained, among other injuries, a fractured femur.
The Moores filed suit on December 20, 1996, alleging negligence and Amerson's answer contained a general denial as well as the affirmative defenses of sudden emergency and the negligent supervision of the grandparents. The case proceeded to trial on July 20, 1999.
The Moores presented three witnesses relevant to proving Amerson's liability; fourteen year-old DeShanda Christmas, twelve year-old Sharice Harris, and the defendant, Elizabeth Amerson, testifying as if on cross-examination. Christmas testified that she, Moore, Harris, and a third girl, Brooke, were together on August 1, 1996, and that Brooke was holding Kashiff's hand before he crossed the street. She said that Harris ran across the street first, and that Brooke then let go of Moore's hand and told him to run across the street after Harris. Although Christmas testified that she did not think it was wise for Brooke to let go of Moore's hand and send him across the street, she did not see any northbound cars pass before Moore left the curb and claimed she did not see Amerson's car approaching until it hit Moore. She believed, although she did not estimate its speed, that the car was going too fast under the circumstances.
When, during cross-examination, Christmas was asked about an earlier statement made to an insurance investigator in which she failed to mention Harris's presence, she explained that Harris left the scene immediately after the accident and she probably forgot about Harris's presence when questioned later. Harris testified only that she crossed the street before Moore, and did not look back until hearing the collision, at which point she saw that Moore had been struck by a car. She testified that she ran home because she felt responsible for Moore's attempt to cross the street, and wished to avoid punishment. She did not see the collision and also did not see Amerson's car approaching.
Amerson testified that she turned southbound onto Green Road from McCann Street, three blocks north of Vera Street. She saw the children walking and, as she approached, saw that they were preparing to cross t
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