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Rotheli v. Chicago Transit Authority

FEBRUARY 23, 1955.

THEODORE ROTHELI, APPELLANT,

v.

CHICAGO TRANSIT AUTHORITY, APPELLEE.



Appeal from the Superior Court of Cook county; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Judgment affirmed.

MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from a judgment entered in favor of the defendant on a verdict of a jury in an action to recover damages for personal injuries alleged to have been sustained by him when he was alighting from defendant's bus on which he was a passenger.

About ten o'clock p.m. on October 2, 1949, plaintiff, on his way home from his place of employment, boarded a trolley bus going east on Montrose avenue at the intersection of Kildare avenue in the City of Chicago. He paid his fare, received his transfer, and intended to alight at the intersection of Lincoln avenue "to take the Lincoln Avenue streetcar that takes me right to my home." When the bus reached the intersection of Lincoln avenue plaintiff walked to the front exit doors on the right side of the bus. He testified that when the exit doors opened another passenger in front of him got off; that he "had one leg on the ground and one on the step" as both doors closed striking his left shoulder; that at the same time the bus moved eastward, throwing him upon the ground alongside of the bus, and that the front wheel of the bus ran over both of his feet.

The bus driver, Theodore Pokoyfka, who had severed his connection with the defendant sometime before the trial, was called in behalf of defendant. He testified that when the bus stopped at the intersection of Lincoln avenue there was "no space at all" between the exit doors of the bus and the curb of Montrose avenue; that plaintiff was the only passenger who alighted from the bus at the intersection; that plaintiff stepped from the bus onto the sidewalk; that when the traffic signal light turned green the witness closed the door and started the bus in motion, and that when the bus started plaintiff was standing on the sidewalk facing north about two or three feet south of the bus door. After plaintiff was struck the bus traveled five or six feet.

The testimony of Pokoyfka was substantially corroborated by two passengers, Harry McNaughton who testified he was seated in the first seat on the right side of the bus next to the window, and Evelyn Naessens who said she occupied the second seat on the right side of the bus at the time the plaintiff alighted.

Plaintiff contends that the verdict of the jury is against the manifest weight of the evidence. We think this contention is without merit. The defendant's theory of the case is that the bus stopped and permitted the plaintiff safely to alight and that thereafter, while plaintiff stood on the public sidewalk facing the bus, it started in obedience to the traffic signals, and that the plaintiff stepped off the sidewalk and into the side of the moving bus.

Plaintiff's case rests solely on his own testimony. The defendant's witnesses, the bus driver, Pokoyfka, and the passengers, Naessens and McNaughton, appear to be disinterested witnesses. They all testified that the plaintiff had left the bus and was standing on the public sidewalk facing north opposite or near the exit door of the bus when it started eastward. We think that the jury could find that the plaintiff came in contact with the side of the moving bus after he had reached a place of safety on the sidewalk without negligence on the part of the defendant.

Plaintiff insists that the trial court committed reversible error in giving defendant's instruction number 16, which reads:

"You are instructed that if you find from the evidence that the plaintiff had fully alighted from the defendant's bus and had reached a place of safety before he was injured, the relationship of passenger and carrier ceased to exist between defendant and plaintiff. Then you are instructed as a matter of law under these circumstances, the operator of the bus in question was only required to exercise toward the plaintiff ordinary care, and ordinary care is such care that a person of ordinary prudence would exercise under the same and similar circumstances."

In support of his position plaintiff relies strongly on Feldman v. Chicago Rys. Co., 289 Ill. 25 (1919). In that case Feldman and Burke were passengers on a southbound Cicero avenue streetcar. They alighted on the north side of 12th street where the car came to a full stop. A switch extended from the west side of the southbound track on Cicero avenue to the north side of the westbound track on 12th street. The front trucks of the Cicero avenue car had passed south of the switch before the car stopped. Feldman and Burke left the car and started for the southwest corner of the intersection. Burke had finished his journey when he left the car but Feldman intended to ride east on 12th street. When Feldman reached a point five or six feet west of the car near the north crosswalk of 12th street the car from which he had alighted was started by the motorman. Instead of going south, the rear end of the car suddenly swung around to the west so that the end of the car almost touched the west curb of Cicero avenue, striking both Feldman and Burke. The court said, at page 33:

"While the holdings of the courts of this country have not been uniform upon this question, notably those of Massachusetts and Tennessee holding that the relation of carrier and passenger ceases where one alights from a car in a public street for the purpose of transfer, (Creamer v. West End Railway Co., 166 Mass. 320; Chattanooga Railway Co. v. Boddy, 105 Tenn. 666); we are of the opinion that the weight of authority in this country sustains the view that where, as here, a passenger who is making a continuous journey alights from a street car for the purpose of making a transfer, the relation of carrier and passenger continues while he is in the necessary act of making said transfer, and that if he be injured through the negligence of the carrier while making such transfer the carrier is liable."

In the Feldman case the defendant argued that Feldman was no more a passenger than Burke who was injured at the same time. The court made a distinction between Burke and Feldman on the ground that Feldman was engaged in a continuous journey while Burke's journey so far as the carrier was concerned had ended.

The precise question presented here was determined in Virginia Ry. & Power Co. v. Dressler, 132 Va. 342, 111 S.E. 243 (1922), where the court held in effect that one who has alighted from a streetcar at a transfer point, and after passing along the street is crossing the street on which his car is to arrive and while doing so was injured by another car, does not at the time of the injury sustain the relation of passenger and carrier.

After an accurate analysis of the cases in Illinois and in other jurisdictions, that court in adverting to the ...


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