Appeal from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion January 15, 1970.
While riding on a bus operated by the Chicago Transit Authority, Andrew Letsos was injured by another passenger. His complaint charged that the defendant negligently failed to preserve order on the bus and failed to take timely action to protect him from harm by warning, restraining or ejecting passengers who were disorderly and dangerous. A jury found the issues in his favor and a judgment for $25,000 was entered on the verdict. The defendant's only contention on appeal is that the trial court erred in denying its motion for judgment notwithstanding the verdict.
Letsos and his cousin Peter Tselios completed their work in downtown Chicago on the night of April 2, 1962, and about 8:45 p.m. boarded a west Madison Street bus to go home. Letsos and Tselios were white; the driver and the rest of the passengers on the crowded bus were black. They stood until two people got up and then found seats in the front of the bus: Tselios with three other passengers on the long, side seat to the driver's right; Letsos behind him, on the aisle side of the first forward-facing, two-passenger seat.
Shortly after they boarded the bus, noise, hollering and argument came from the rear and continued throughout their journey. Passengers got on and off and the bus was less full when it approached Oakley Boulevard, a street about three miles west of the downtown area. As it neared that street a man stepped on Tselios' feet on his way to the front door. Tselios exlaimed: "You stepped on my foot." The man made some reply, hesitated at the door and then, at the driver's urging, got off. The driver closed the door quickly and drove on. As the door closed, another man who was seated behind the driver and across the aisle from Tselios told him to watch his feet. Tselios said for him to mind his own business and the man replied, "When you trip my people, I make it my business." He got up and went for Tselios; Tselios grabbed his arms and they scuffled.
Simultaneously with this altercation, the commotion in the back of the bus increased. Shots were fired. Letsos, who had remained seated was shot twice, once in the left leg and once in the left heel.
Amidst confusion and screaming the bus pulled to its regular stop at Western Avenue. The driver ran across the street to a store and telephoned his dispatcher. The passengers scrambled out and dispersed. Letsos fell to the floor and lost consciousness. He awakened in the hospital. His tibia was fractured and a bullet was embedded in the bone's pulmonary canal.
The driver testified that he heard no disturbance until the bus reached Oakley Boulevard. At this stop he saw a passenger stumble all the way to the front door. The passenger turned around and told one of the two white men to take his feet out of the aisle; he paused like he was going to get involved physically and the driver told him he was holding up the bus. He got off but more words were said and he started to get back on. The driver slammed the door and "took off for Western" a long block away. The driver heard the argument and saw the encounter between the black man back of him and the white man across the aisle. At this same time, while the bus was between Oakley and Western, he saw another man come from the back and strike one of the white men. He said the two black and the two white men fought in the middle of the floor. He said it was his intention to separate them and to put them off the bus but when the shots were fired everyone "evaporated."
The driver testified that he was the last one off the bus, but he also said that others left after he did, including the man who came from the back of the bus and participated in the fight. While he did not see a gun and did not know who did the shooting, in his opinion it was done by this man. After making his telephone call and returning to the bus, he saw this man leave the bus by the rear exit and enter a taxicab. Although the driver suspected that this man did the shooting and knew he had taken part in the affray, he did not mention this to the police who were at the scene and did not note the license number of the cab.
Only two witnesses, other than Letsos and the bus driver, testified about the occurrence. Tselios was in Greece at the time of the trial and the two witnesses were women who said they boarded the bus one stop before Oakley Boulevard. They telephoned the defendant a day or two after the shooting to report that they had been injured while getting off the bus. They testified that they sat in the rear and that nothing unusual happened until the bus reached Western Avenue, where some hollering and shooting took place. Their testimony was of dubious quality. They did not hear either the disturbance at Oakley or the altercation after Oakley although both were acknowledged by the driver. Determining the weight and credibility of their testimony was the jury's function.
Letsos, as a passenger in the defendant's bus, was entitled to the highest degree of care. Blackwell v. Fernandez, 324 Ill. App. 597, 59 N.E.2d 342 (1945). A passenger who pays his fare to a common carrier expects safe transportation to his destination and a carrier is required to do all that human care, vigilance and foresight can reasonably do to transport its passengers safely, consistent with its mode of conveyance and the practical operation of its business. Lutz v. Chicago Transit Authority, 36 Ill. App.2d 79, 183 N.E.2d 579 (1962). This duty includes the obligation of using due diligence to protect its passengers from assault, injury and abuse by third persons. Chicago & Alton R. Company v. Pillsbury, 123 Ill. 9, 14 N.E. 22 (1887); McMahon v. Chicago City Ry. Co., 143 Ill. App. 608 (1908); affd 239 Ill. 334, 88 N.E. 223.
The defendant does not quarrel with these general principles but its contention is that the injury occurred so suddenly and unexpectedly that it could not have been foreseen by the driver, and consequently the trial court should have set aside the verdict for Letsos and entered judgment in its favor.
A defendant's motion for judgment notwithstanding the verdict should be granted only where all the evidence when viewed most favorably to the plaintiff is so overwhelmingly in the defendant's favor that a verdict for the plaintiff could never stand. Larson v. Harris, 38 Ill.2d 436, 231 N.E.2d 421 (1967); Bernier v. Skripek, 86 Ill. App.2d 118, 229 N.E.2d 890 (1967). The evidence created a factual issue for the jury's resolution. The evidence was sufficient to allow its verdict to stand and the trial court properly denied the defendant's motion.
From the evidence most favorable to the plaintiff the jury could have found that there were two disturbances on the bus: that there was continual argument in the rear during Letsos' trip, that this led to the shooting, that the quarreling should have alerted the driver to impending trouble and that he should have taken steps to stop it; that even if the driver was unaware of the disturbance in the back of the bus, he was not ...