Appeal from the Circuit Court of Cook county; the Hon. B. FAIN
TUCKER, Judge, presiding. Reversed and remanded.
PRESIDING JUSTICE KILEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified April 9, 1958.
This is a personal injury action brought by plaintiff against the Chicago Transit Authority and the Marhoefer Packing Company, hereinafter referred to respectively as C.T.A. and Marhoefer. Judgment for plaintiff was entered upon a general verdict against C.T.A. for $35,000; the jury found Marhoefer not guilty. The trial court denied the post-trial motion of C.T.A. asking for judgment on a special interrogatory in its favor or in the alternative for judgment notwithstanding the verdict. The court conditionally granted plaintiff's motion for a new trial as to both defendants. C.T.A. and Marhoefer have appealed.
The complaint alleges that plaintiff was injured January 27, 1955, near the corner of Larrabee and Oak streets in Chicago. He had finished work about 8:20 A.M. and was waiting at the southeast corner for a northbound bus. A truck was illegally parked in the bus loading zone and plaintiff was injured when pinned between the moving bus and the standing truck.
The complaint alleges further that the C.T.A. negligently "equipped, maintained, controlled and operated its said motor bus" and that Marhoefer negligently "parked" its motor truck "within a bus stop in violation of Section 27-122 of the Municipal Code of Chicago" and that due to the negligence of both defendants plaintiff was injured. Though the complaint specifies five negligent acts or omissions in operation, it makes only the general allegation of negligent equipment and maintenance. C.T.A.'s answer did not call for more specific charges of this general allegation; it merely made a general denial.
The jury answered "No" to a special interrogatory asking: "Was the operator of defendant Chicago Transit Authority's bus guilty of negligence immediately before or at the time of the accident in question?" The result of the verdict was to find the C.T.A. guilty on the faulty equipment or maintenance theory of liability and not guilty on the operation theory of liability, both of which are sufficiently alleged in the complaint.
C.T.A. contends that its motion for judgment on the special interrogatory should have been granted on the ground that the finding of the special interrogatory is controlling where it is inconsistent with the general verdict. There is no merit in this contention, though there is no dispute over the rule that where a special interrogatory on an ultimate fact is inconsistent with the general verdict the special interrogatory controls. Ebsery v. Chicago City Ry. Co., 164 Ill. 518, 521; King v. Ryman, 5 Ill. App.2d 484; see also Civil Practice Act, Section 65 (Ill. Rev. Stat., Chap. 110, Par. 65). We agree with plaintiff that the special interrogatory would be inconsistent with a general verdict under the faulty operation theory, however, it is not inconsistent with a general verdict under the faulty equipment and maintenance theory. The C.T.A. upon sufficient evidence might be guilty of negligence in maintenance even though the driver was not negligent in operation. No case cited by C.T.A. is applicable to support its theory in this case. We think the trial court properly denied C.T.A.'s motion for judgment on the special interrogatory.
We think it is fair to say that the C.T.A. contends also that the trial court erred in not granting it a judgment notwithstanding the verdict. It argues that there is no evidence of negligence except that of operation. Plaintiff argues to the contrary that the jury had a right to believe that C.T.A. was negligent in failing to properly equip and maintain the bus equipment. The C.T.A.'s contention, however, is made in support of its main point that the general verdict and special interrogatory are inconsistent. We have decided in plaintiff's favor on this point. In view of that decision and in view of the peculiar circumstances of this trial, we shall consider the C.T.A.'s contention as directed to the general verdict on the theory of liability for faulty maintenance and equipment. In this case and on this record, we think this is fair.
On this question we take only the evidence favorable to plaintiff and draw the legal inferences most strongly in his favor, rejecting contradictory and contrary evidence to decide whether there is any evidence of negligence. Hunter v. Troup, 315 Ill. 293; Mahan v. Richardson, 284 Ill. App. 493; Nagel v. City of Chicago, 15 Ill. App.2d 533. Plaintiff argues that the jury could find that the C.T.A. was negligent in failing to equip its bus with a defroster system, or double glass windows, or with fans so as to prevent windows from becoming so frosted that the driver could not see plaintiff. This court has held that a plaintiff's recovery must be founded on a theory (Rogers v. New York, C. & St. L.R. Co., 328 Ill. App. 123) and though argument to the jury for plaintiff indicates he relied upon the charges of negligent operation, we shall proceed to consider whether there is any evidence to support the maintenance and equipment theory as specified by plaintiff's argument here.
The only favorable testimony plaintiff relies on is that of defense witness, Lahendro, who testified on direct examination:
"Q. At any time did you see any man in the street?
A. No. I believe you couldn't even see through ...