Appeal from the Circuit Court of Cook County; the Hon. FRANK
R. LEONARD, Judge, presiding. Judgment adverse to plaintiff
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
The complaint alleges that plaintiff sustained injury on November 25, 1956, when he was assaulted by two men and pushed onto the tracks from defendant's subway platform at State and Monroe Streets, Chicago. It was also alleged, pursuant to plaintiff's theory of liability, that defendant knew or should have known that the platform was a dangerous place, because it had been the scene of previous assaults by vicious persons, thus imposing on defendant a duty to police its platform for the protection of persons such as plaintiff who were awaiting the arrival of defendant's trains. The alleged failure of defendant to exercise ordinary care in fulfilling this duty is the basis of plaintiff's claim.
After selection of a jury, opening statements were made. The court then refused to hear evidence offered by plaintiff relating to previous assaults. It should be noted here that the whole question of an offer of proof is always dependent upon a preliminary ruling by the trial judge that he will not admit evidence which one of the parties is seeking to introduce. Without such a ruling, as in the instant case, neither the necessity nor opportunity for presentation of an offer of proof ever comes into existence. Then, when an offer of proof is made, the generalities become merged into the particulars of the specific evidence offered, and the judge is then in a position to determine the materiality and relevancy of whatever actual evidence may be available to the party to prove the point he seeks to establish.
In this case plaintiff had subpoenaed three police officers who were present and prepared to testify to previous occurrences. Plaintiff's attorney was thereupon required or given an opportunity to make an offer of proof in the form of a statement describing the testimony he proposed to elicit, a formal offer of proof having been waived by defendant. He stated for the record:
The following offer of proof is being made with a waiver of formal proof by way of a witness taking the stand; *fn1 that if permitted to proceed . . . the plaintiff would produce (three police officers who were attached to the district wherein the occurrence complained of took place, at that time and prior thereto).
These officers would testify of their own knowledge that there were several complaints received over a period of time prior to 11/25/56 as to assaults, robberies and various crimes in and about the platforms in the area of the subway near Monroe and State Street.
Further, Captain E.J. Barry will testify that at that particular time he was the desk sergeant in the First District, and that prior thereto, on at least one occasion, it was necessary to detail a special task force of police to the downtown subway platforms, said special detail being drawn from the outlying area because of particular complaints in the nature previously described and one complaint in particular, by the secretary to the then Governor of the State of Illinois, Adlai Stevenson, who was assaulted in and about one of the platforms in the area.
Defendant objected to the offer of proof, the objection was sustained, and the offered proof was rejected. Rather than attempt to proceed further in this regard, plaintiff elected to stand on his offer of proof, and it was expressly so stated in the judgment order. Therefore, while plaintiff raises technical points concerning the way in which the case was handled by the trial judge, the essential issue before us is the correctness of the court's ruling on the particular offer of proof on which plaintiff rested his case.
It cannot be disputed that in this type of action it was open to the plaintiff in fact, it was necessary for the plaintiff as part of his burden of proof to show actual or constructive notice to defendant of the existence of a dangerous condition at its State-Monroe station platform at the time of plaintiff's injury. Absent such knowledge, the alleged duty to police the platform at that location would not have been breached because it would not have arisen.
As relating to the question of defendant's knowledge of prior disturbances which would raise a duty to police this particular station platform, the trial court was clearly in error in its broad preliminary ruling that no evidence of any prior occurrences would be admissible. If the matter had rested there, it might reasonably be argued that it would have been a useless or futile gesture for plaintiff to pursue the proposition further by urging upon the court an offer of proof through which he would make specific the point which up to that time had been stated only in generalities. For authority bearing on this exception to the general rule see, for example, Giddings v. Williams, 336 Ill. 482, 168 N.E. 514, where the Supreme Court found that the attitude of the trial court had been so extremely hostile as to prevent plaintiffs in error from making an offer of proof and that they were therefore excused from doing so. See also Cleary, Handbook of Illinois Evidence, § 7.7, and ILP, Trial, § 44, and cases there cited to the same effect. The result in such a situation is that the ruling of the court, which would ordinarily not be reviewable without an offer of proof, does become so reviewable, and the absence of an offer of proof in such a circumstance is not permitted to work to the injury of the party who was prevented from following the customarily required procedure.
[4-6] In the instant case, however, the matter did not rest there, and the attitude of the court obviously did not prevent plaintiff from making the offer of proof which he then proceeded to lay before the court. At the conclusion of the offer of proof, the court (as shown by the judgment order) took "the matter under advisement on offer of proof submitted by the plaintiff." After the court had sustained defendant's objection to the offer of proof, "the Plaintiff standing on said offer," the court proceeded to enter judgment. On this record it appears to us clear that the judge's preliminary erroneous ruling became academic and of no importance whatsoever when the offer of proof was actually made by plaintiff and considered by the court. The issue which then arose, and is now presented for our decision, is whether or not the court was correct in sustaining defendant's objection to the offer of proof as made. And if the trial judge's ruling was correct, it is of no consequence that he may have stated a wrong reason therefor, which we think he did. Platz v. Walk, 3 Ill.2d 313, 318, 121 N.E.2d 483; Murphy v. Lindahl, 24 Ill. App.2d 461, 468, 165 N.E.2d 340. Unlike an appellant, an appellee's argument in this court need not be confined to specific objections or points properly raised by him in the trial court. A judgment may be sustained by any argument and on any basis appearing in the record which demonstrates that the judgment was correct, even though such objection or argument had not been advanced at all in the trial court. Merriam v. McConnell, 31 Ill. App.2d 241, 244, 175 N.E.2d 293, citing, among other authorities, the leading case of Becker v. Billings, 304 Ill. 190, 205, 136 N.E. 581.
We are therefore required to consider the sufficiency of the offer of proof (as set forth above) for the purpose of meeting plaintiff's burden to establish defendant's actual or constructive knowledge of a dangerous situation at the Monroe-State platform on November 25, 1956. In this consideration, however, it must be borne in mind that proof of just any prior acts of subway platform violence would not meet this burden. There must be proof of such acts which were proximately related to the attack on plaintiff as to both time and place. See, e.g., In re Estate of Kroening, 329 Ill. App. 178, 67 N.E.2d 293, and Romine v. City of Watseka, 341 Ill. App. 370, 375-376, 91 N.E.2d 76.
Plaintiff contends that his offered proof was sufficient, based upon the principles laid down in Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497. There a suit was brought by a young woman to recover damages for injuries sustained as a result of being assaulted while she was waiting for a train at defendant's railroad station. Both plaintiff and her sister testified that for two years immediately prior to the assault, they had seen tramps and hoboes on, and in the immediate vicinity of, the station platform at least once a week, and that they had repeatedly complained to the ticket agent about this situation. Further, there was testimony by police officers that at times proximate to the assault, they had removed hoboes from the station in question. Plaintiff is correct when he contends that the Neering case stands for the proposition that liability will be imposed on a carrier which knowingly allows lawbreakers to have access to its premises. But the opinion in Neering demonstrates the fatal defect of plaintiff's case. The evidence submitted to prove knowledge in the Neering case was specific and proximate as to both the time and the area involved. No question of materiality or relevancy of such evidence was left for the speculation of the trial judge or of a reviewing court. The holding in that case is consequently confined to a dangerous condition shown to have been proximate to the assault in question as to both time and place. Instead of furnishing authority for reversal, therefore, we consider that the Neering case constitutes a sound basis for affirmance. The offer of proof in the case before us is far too general to justify our sending the case back for trial. We can have no assurance that the specific occurrences about which the police officers might testify would be at all relevant to meet plaintiff's burden.
We take notice of the fact that there is more than a mile of "downtown subway platforms" in Chicago, all of which might be said to be "in the area near" Monroe and State Streets, but most of which would not be near enough to establish the proof required of plaintiff in this case. The only instance specifically referred to in the offer of proof *fn2 is that of the assault upon the secretary to the then Governor, Adlai Stevenson. From this part of the offer it appears only that there had been an assault sometime during the period of years 1949 through 1952 (i.e., during the Governor's term of office) at a subway platform which might have been anywhere in the downtown area at Harrison and State Streets, for example. Thus, the only specific occurrence covered by the offer of proof could have taken place a half mile from the Monroe Street platform where the surroundings are very different, and was certain to have occurred 4 to 8 years prior to the instant assault. In regard to this specific offer, we consider it too remote in both time and place, and we consider the balance of the offer to be inadequate because too general and vague. Taken as a whole, the offer of proof is insufficient to establish the constructive notice necessary for plaintiff's prima facie case. An offer of proof serves no useful purpose at all if it does not demonstrate (to both trial and appellate courts) the admissibility of the testimony which was foreclosed by the ruling complained of. As stated by Professor Cleary in his Handbook of Illinois Evidence, § 7.7, "Just as the objection is the key to saving for review any error in admitting evidence, the offer of proof is the key to saving error in excluding evidence." And admissibility cannot be determined from descriptive generalities. The "offer must state specifically what it is proposed to show in order that the court may rule on its materiality and relevancy." ILP, Trial, § 44 and cases there cited. While defendant made only a general objection to the offer of proof, such an objection effectively raises the questions of materiality and relevancy. Johnson v. Bennett, 395 Ill. 389, 398, 69 N.E.2d 899. Evidence of an assault removed in time or place from the instant occurrence would not be relevant to the critical issue of constructive notice.
After the trial court's decision on plaintiff's offer of proof, the attorneys entered into a stipulation and the judge then took the case from the jury and entered judgment for defendant. Plaintiff's final argument here is that this stipulation of counsel relieved him of making any more specific offer of proof than he did. Part of the stipulation, as stated orally to the court by plaintiff's attorney, was:
It is agreed by and between the parties hereto that for the purpose of this proceeding only, the defendant waives formal proof of the other necessary allegations of the complaint, being, to wit: The occurrence as alleged on 11/24/56, due care and caution upon the part of the plaintiff, injuries as to proximate result of negligence, if any, on the part of the Chicago Transit Authority.
May the record further show that this procedure is being made and taken in order to save three days of vital court time at the present time, inasmuch as the Court indicated to all concerned that it would not allow the proof from witnesses who are necessary in the proceedings.
The balance of the stipulation was set forth in a finding by the court in its judgment order as follows: . . . and the Court taking the matter under advisement on offer of proof, submitted by the plaintiff, formal proof being waived by stipulation and agreement, said offer of proof corresponding to and supporting the allegations of the Amended Complaint with reference to previous incidents of assaults, the veracity, credibility and sufficiency of the proof not being admitted by the defendant. . . . (Emphasis supplied.)
The question of the sufficiency of the proof offered was thus clearly in the minds of both court and counsel when the judgment order was entered. We therefore cannot reach the conclusion which plaintiff urges upon us in this regard. In our opinion, defendant did not stipulate away the controlling issue of the sufficiency of ...