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Herron v. Yellow Cab Co.

APRIL 21, 1966.

NOVELLA HERRON AND PATRICIA HERRON, A MINOR, BY HER MOTHER AND NEXT FRIEND, NOVELLA HERRON, PLAINTIFFS-APPELLEES,

v.

YELLOW CAB COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, First Municipal District; the Hon. CHARLES P. HORAN, Judge, presiding. Judgments affirmed.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Defendant appeals from judgments in favor of plaintiffs for personal injuries sustained when they fell off the rear seat of defendant's taxicab as the taxicab came to a sudden stop in order to avoid striking a boy riding a bicycle.

Defendant contends that plaintiffs' evidence, together with all reasonable inferences to be drawn therefrom in its aspect most favorable to plaintiffs, fails to establish that the defendant was negligent, and that plaintiffs' evidence of injury was palpably false and should have been disregarded.

Plaintiffs, Novella Herron and Patricia Herron, a minor, on April 26, 1961, were passengers in a taxicab owned and operated by the defendant, a common carrier of passengers for hire.

Plaintiffs' evidence showed that Novella Herron and her daughter, Patricia Herron, entered a Yellow Cab on Harrison Street and the cab proceeded west on Harrison Street in the city of Chicago. Her daughter had obtained "a shot" at the Cook County Hospital. The daughter had been suffering from pneumonia. Novella Herron was seated in the right rear of the taxicab and her daughter was seated beside her. The daughter, Patricia, was three years old at the time of the accident. There are stop and go lights on the corner of Harrison and Ogden. At the corner of Ogden the cab suddenly stopped while it was still at the intersection of Ogden and Harrison. The plaintiff, Novella Herron, testified that "immediately after the stop, I and my little girl were on the floor of the cab. My little girl was laying on the left hand side of the taxicab and I went down on my knees to the floor of the cab."

The cabdriver testified that he had picked up the plaintiffs at the County Hospital at a taxicab stand. The mother told him to go to Grenshaw and he proceeded west on Harrison. As he approached Ogden Avenue he noticed the light was green for westbound traffic on Harrison Street. He pulled into the center of the intersection and stopped, waiting for traffic to pass in order to make a left hand turn at Ogden to go southwest. A boy with a bicycle started across Ogden from the center of the intersection just as the cabdriver stepped on the gas. The cabdriver testified that he proceeded two or three inches before he stopped. He also testified that he could not have been going over a couple of miles, or no faster than five miles, an hour. When he first saw the boy he was close to the intersection. There is a safety island at this intersection. There is a pole in the middle and one must go around the pole to make the turn on Ogden. The boy was facing west. He did not come into contact with the boy. A couple of feet separated the taxicab and the boy when the cabdriver stopped. He testified that when he stopped the cab, the child slipped off the seat and that he took her with one arm and put her back on the seat. He also testified that the mother was sitting in the cab and that he did not see the mother on the floor. When the cabdriver first saw the boy on the bicycle he was in the crosswalk going west and was near the post in the middle of Ogden Avenue at the south curb line of Harrison. Just as the cab started to make a left turn the driver looked to the left. He was watching eastbound traffic and when it cleared he turned to the left and saw the boy on the bike. The cabdriver testified that it seemed as if the boy had been waiting. He mounted the bike and the cabdriver saw his feet getting on in the center of the intersection. The wheels of the bicycle and the wheels of the taxicab were moving when the cabdriver first saw the boy. The cabdriver said that when he saw the boy he stopped and that the boy was near the post when he first saw him. The cabdriver moved his cab two feet and then applied his brakes. He testified that he could not have been going more than five miles an hour. He did not get out of the cab and he did not speak with the boy. The boy had the green light. He was going west on Harrison. The cabdriver also testified that "after I hit the brake the car traveled two or three inches." He did not warn his passengers that he was putting on his brakes.

Plaintiff Novella Herron in her testimony stated that she told the cabdriver that Patricia, her daughter, was hurt and that the driver had asked the boy if he was hurt and then got back into the cab and asked about Patricia, her daughter.

The defendant cites the case of Dixon v. Hart, 344 Ill. App. 432, 101 N.E.2d 282, in support of the argument that the word "sudden" used in conjunction with stop does not describe the movement of defendant's vehicle in such a way as to permit the trier of fact to conclude that the defendant was negligent. In the Dixon case, supra, action was brought for injuries sustained by a housewife who entered defendant's store where her left foot slipped and she fell, and the plaintiff was assisted to a chair 25 to 30 feet from where she fell at which spot she rubbed her hand over the floor and found it "slick." The court in that case discussed the question as to whether testimony that a floor was "polished" or "slick" without more, established that the defendant was negligent in his choice or application of a floor dressing, or that the floor was dangerous for use by the public. The court concluded in that case that the plaintiff had not met the burden required of her because what is "slippery" to one person might not be "slippery" to others, and what is "slick" to a person wearing one type of shoe might not seem "slick" to him if wearing another kind of shoe. The court held the evidence in that case standing alone would not require the store owner's liability to be weighed by a jury, especially in view of the fact that the condition of the defendant's floor as being "slippery" and "slick" was based upon a part of the floor 25 or 30 feet away from the accident.

Defendant also relies upon the case of Rarus v. J.C. Penney Co., 39 Ill. App.2d 42, 187 N.E.2d 529. This case also involved injury from a fall on a floor that was described as being "slippery and shiny." The court in that case held that it was not negligence to apply wax to a floor unless there is some evidence that it was improperly done and that waxing of floors is too common a practice to constitute negligence in the absence of evidence tending to show some positive negligent act or omission. We are of the opinion that those cases are not controlling here.

In the case of Lazarus v. Friel, 331 Ill. App. 552, 73 N.E.2d 647, plaintiff was standing one step above the platform where the motorman stands on a streetcar. The streetcar was slowing down and was coming to a stop when it jerked three or four times and plaintiff was thrown off balance and slipped down on the platform near the motorman. The plaintiff also testified that the floor of the platform was wet. The defendants in that case contended that no negligence on their part was proved. The court in that case, relying on the authority of Kaldunski v. Chicago City Ry. Co., 250 Ill. App. 475, held that it is settled in this state that where there is an unusual or extraordinary lurch or jerk of the car upon which a person is riding as a passenger and, by reason thereof, a person is thrown down, it becomes a question of fact for the jury as to whether or not the accident was caused by the negligent operation of the car or train.

In Heineke v. Chicago Rys. Co., 279 Ill. 210, 116 N.E. 761, the court said at page 213:

"The jerk or sudden stop and lurch of the car is shown by the evidence in the record to have been the controlling and proximate cause of defendant in error's injury. The operation of the car was entirely within the control of plaintiff in error's servants, and a sudden jerk or lurch of the character disclosed by the evidence, being a cause within the control of the carrier, causes to arise a presumption of negligence on the part of the carrier and was sufficient upon which to submit to the jury the question of negligence."

In Hirshberg v. Cummings, 324 Ill. App. 62, 57 N.E.2d 284, the plaintiff entered at the front of the car, walked back to the middle where she paid the conductor her fare and before she had time to be seated, the car suddenly stopped, causing her to be thrown to the floor and severely injured. The defendant there contended that the court should have directed a verdict in their favor. The evidence in that case further showed that the motorman was driving at a speed of about 25 miles an hour and a truck backed out of the alley on the north side of the street; that he sounded his gong, threw on the brakes and stopped the streetcar as quickly as possible; that the lady fell as the motorman stopped the streetcar. The court on page 67 said:

"Upon a careful consideration of all the evidence we are of opinion that all reasonable minds would not reach the conclusion that there was no negligence on the part of the motorman and in such a situation the question of negligence is one of fact for the jury. Louthan v. Chicago City Ry. Co., 198 Ill. App. 329; Bale v. Chicago Junction Ry. Co., 259 Ill. 476; Kelly v. Chicago City Ry. Co., ...


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