Appeal from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
This appeal is taken by the plaintiffs from a directed verdict for the defendant in a personal injury action against the Chicago Transit Authority. The plaintiff, Martha Gauchas, and her four-year-old grandson were injured when they were struck by a motor-bike at the corner of Irving Park Road and Leavitt Street in Chicago. The rider of the motor-bike fled the scene and has remained unidentified. The plaintiffs' complaint charged that the negligent conduct of one of the defendant's bus drivers was the proximate cause of their injuries.
Two conflicting versions of what took place were put before the jury. Mrs. Gauchas testified that she left her home with her grandson and walked to the bus stop at the northeast corner of Irving Park and Leavitt. A westbound bus approached, but instead of pulling in to the north curb stopped about ten feet from the curb, and the driver, opening the doors, motioned to the plaintiff to come out there. She looked to her left to see if there was any oncoming traffic, then stepped off the curb holding her grandson's left hand. Six or seven feet from the curb they were struck by a westbound motor-bike which cut around from the rear of the bus and attempted to pass it on the right. The plaintiff said she saw the motor-bike when it was on top of them and that she remembered nothing after she was struck except that someone took them to the hospital.
The plaintiffs' witness, George Jukish, testified that he had parked his car on the north side of Irving Park, just east of the bus-stop sign and had waited in the street for the bus to pass before starting to cross to the south. He also saw the motor-bike behind the bus, waited for it to pass, saw it go to the right of the bus, and heard a scream as the plaintiffs were struck. He did not actually see them struck because he had started across the street after the motor-bike went by and he was looking south at the time. When he heard the scream he turned toward the corner and saw the woman and the boy lying in the street. According to him the bus stopped in the center lane with its front at the west line of the east crosswalk.
The bus driver was the defendant's only occurrence witness. He testified that the bus-stop at the corner of Irving Park and Leavitt was about 80 feet in length and that the bus which he was driving was half that length, but that an automobile, which he estimated to be 12 feet in length was parked in the middle of the bus-stop. As he approached the intersection at 5 miles per hour he observed a lady and a little boy standing in the street three feet south of the north curb, near the crosswalk. He said that as he was preparing to pull in to the curb to pick up the two passengers he heard the motor-bike at his right side, saw it flash past him at a high rate of speed and saw it strike the woman and child. He said he was 30 feet away when this happened, that he stopped the bus 25 feet east of them and alighted to offer what assistance he could. The boy who was driving the bike also fell, but he got up, got on the bike and took off. The driver was not asked and hence did not deny, on either direct or cross-examination, whether he had opened the door or that he had in any way motioned to the plaintiffs that they should come over to the bus.
The defendant's motion for a directed verdict was granted because of certain answers given by Mrs. Gauchas to questions asked of her on cross-examination. It is argued that these answers constitute a judicial admission which preclude the plaintiffs from benefiting from the other testimony in the case. The argument concludes that without Mrs. Gauchas' testimony there is no evidence of liability on the part of the Transit Authority.
The pertinent portion of the cross-examination was as follows:
"Q. Did you see the motor scooter before the bus stopped?
Q. Did you see the motor scooter
A. (Continuing) If it was
MR. CASTANES [attorney for the plaintiff]: No. Just answer his question.
MR. BARRY [attorney for the defendant]: Did you see the motor scooter ...