Appeal by defendant from the Superior Court of Cook county;
the Hon. WILLIAM F. CROWLEY, Judge, presiding. Heard in the third
division of this court for the first district at the December
term, 1953. Judgment affirmed. Opinion filed November 3, 1954.
Rehearing denied November 26, 1954. Released for publication
December 9, 1954.
MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 26, 1954.
Defendant appeals from a judgment in the sum of $35,000 entered on the verdict of a jury in an action by plaintiff to recover damages for personal injuries sustained by him as a result of being struck by a streetcar. Defendant's motions for directed verdict and judgment notwithstanding the verdict were overruled.
As grounds for reversal defendant contends (1) that plaintiff was a trespasser; (2) that, even if plaintiff's status was that of an invitee, he failed to establish his own due care and negligence on the part of the defendant; (3) that plaintiff's testimony at the trial is without probative force and should be disregarded because it was in conflict with his testimony on his pretrial deposition; (4) that the court committed reversible error in instructing the jury regarding plaintiff's intoxication; and (5) that the verdict and judgment were against the manifest weight of the evidence.
There was evidence that: On August 25, 1948, plaintiff, aged twenty, accompanied by two friends, spent several hours in the evening bowling. About midnight plaintiff and his companions left the bowling alley and went to a nearby tavern where they remained until 1:00 o'clock a.m. During this entire period plaintiff had consumed three or four glasses of whiskey and about eighteen bottles of beer.
After leaving the tavern plaintiff boarded a northbound Ashland Avenue streetcar and alighted at the intersection of Madison Street where he got on a westbound Madison-Street car. At the western terminus of the Madison-Street line at Austin Boulevard the westbound cars turn into a loop. The loop lies within a rectangular area 185 feet long and 105 feet wide located at the northeast corner of the intersection of Madison Street and Austin Boulevard in the City of Chicago. After clearing the sidewalk on the north side of Madison Street the westbound streetcars stop to discharge their passengers. At this point the westbound cars face north. After discharging their passengers the cars travel westward around the loop until they face south. While facing south the cars stop at the north sidewalk of Madison Street for the purpose of receiving eastbound passengers. There are four streetcar tracks in the loop.
Immediately north of the north sidewalk on Madison Street there is a frame building housing a restaurant known as "The Salt Box." Back of the restaurant there is a radio tower and directly north of the radio tower there is a men's washroom with an entrance on the north side. All of these structures are encircled by streetcar tracks.
After alighting from the westbound streetcar in the loop at about 1:30 a.m. on August 26th plaintiff walked west to the washroom where he remained for about five minutes. Upon leaving the washroom he proceeded east toward a wall along the east boundary of the loop area. Plaintiff got across "the first set of tracks" and as he was walking across the westerly tracks in front of a standing westbound streetcar it suddenly started without warning and knocked him down. This streetcar followed the one on which plaintiff had been riding as a passenger into the loop.
After the impact plaintiff was found lying parallel with and about eight or ten inches from the right side of the streetcar alongside of the front trucks and about 8 feet from the front of the streetcar. His head was toward the rear. At the time of the occurrence the interior of the streetcar which struck plaintiff was illuminated. The headlight, as well as two cowl lights on the front of the car, was burning. The headlight illuminates an area of twenty or thirty feet in front of the car. That portion of the loop area where the streetcar was standing immediately before the accident was lighted by street lamps on Madison Street.
The motorman of the streetcar involved in the accident, one Corcoran, testified, "It was not pitch dark there. You could see somebody if they were walking there. I did not see Mr. Hectus [plaintiff] that night before I saw him crawling away from under the car." According to plaintiff's testimony he was a foot or two in front of the standing streetcar when he stepped onto the tracks and the right front of the streetcar came in contact with him. Plaintiff admits that at the time of the occurrence he was intoxicated.
With respect to defendant's contention that plaintiff was a trespasser, it argues that plaintiff was roaming about on a part of defendant's premises where he had no right to be. This argument is based on the theory that the men's washroom in the loop was intended for the exclusive use of defendant's employees. The evidence on this point is conflicting. There was evidence, however, tending to prove that the washroom was used by the public. A police officer testified that he used the men's washroom on many occasions at night for a period of two years prior to the accident; that he saw persons not employed by the defendant use it, and that he never found the door locked. Motorman Corcoran admitted that he "gave lots of guys" other than employees of the defendant "favors by opening the door for them." Another motorman stated that the washroom was used by streetcar passengers and other people.
Whether plaintiff was an invitee presented a question of fact for the jury to determine. We think the evidence is ample to warrant a finding that the plaintiff was an invitee. See Ellguth v. Blackstone Hotel, Inc., 408 Ill. 343; Larson v. Illinois Cent. Ry. Co., 2 Ill. App.2d 102.
Defendant next contends that it was entitled to a directed verdict for the reason that plaintiff failed to maintain his burden of proof. In considering defendant's motion the question presented is whether there is any evidence which, taken in its aspects most favorable to plaintiff, tends to prove plaintiff's cause of action. (Berg v. New York Cent. R. Co., 391 Ill. 52.) This court cannot reweigh the evidence. We only look at that which is favorable to the plaintiff. (Thomas v. Douglas, 1 Ill. App.2d 261, 117 N.E.2d 417; George v. E.I. du Pont de Nemours & Co., 348 Ill. App. 495.)
[5-7] Although plaintiff's testimony is uncorroborated we do not think that it is contrary to the physical facts. Nor is his testimony inherently improbable. Plaintiff's presence alongside of the front trucks of the streetcar where the crew said they found him is consistent with his version of the occurrence that he was struck by the right front of the streetcar. A pedestrian crossing in front of a streetcar can reasonably assume that it will not start without some kind of warning. In these circumstances the jury could find that defendant's motorman did not exercise due care, first, in failing to see the plaintiff and, second, in failing to give plaintiff some warning before starting the streetcar. In any event, the question of plaintiff's contributory negligence ...