APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
M. BARTH, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 22, 1971.
On May 22, 1963, plaintiff filed suit for gun shot and other injuries sustained at the hand of a fellow passenger on one of defendant's buses. At the close of plaintiff's evidence, the court granted defendant's motion for a directed verdict and entered the judgment in its favor from which this appeal has been taken.
Plaintiff testified that at 6:15 A.M. on December 25, 1962, he and Maureen Davis boarded a westbound bus on 69th Street at South Park Avenue. After paying their fare, he and Miss Davis seated themselves on the driver's side of the bus approximately ten feet behind the driver. There were six to eight people, including the driver, on the bus. As he and Miss Davis proceeded to their seats, he noticed the driver talking to a man on the long seat nearby. When the bus got to State Street, that man, who was a passenger, started down the stairs to get off the bus, but then turned around, exchanged a few words with the driver, and walked back to where plaintiff and Miss Davis were sitting.
In a loud voice he asked plaintiff if he had 25 cents in change, and plaintiff answered that he did not. He then asked plaintiff if he had change for a dollar, and plaintiff again said he did not, and told him to ask the driver for change. The man then reached into his right pocket and pulled out a pistol. Plaintiff grabbed him by the wrist, got up from his seat, and began wrestling with his assailant for the gun. The woman sitting directly in front of them, Miss Christy, began screaming loudly, "Stop the bus, this guy is going to kill this kid." (Plaintiff testified that Miss Christy had a heart attack and died as a result of this incident.) Miss Davis got up to help him and was screaming, "Stop the bus," and "Please stop and get help."
The bus proceeded from State Street to the place where it stopped between Stewart and Normal without making any of the regular intervening stops. The court took judicial notice of the fact that the distance between State and Normal is four blocks, or one-half mile. Stewart is within that distance, one block east of Normal. Plaintiff remained seated during the argument which began after they left State Street. The bus was between State and Wentworth (two blocks west of State) when the man pulled his gun. At that point, plaintiff got up out of his seat and wrestled the man to the back of the bus. Plaintiff fell back against the rear door of the bus with the man on top of him, and, trying to keep the pistol away, plaintiff had both his hands around the man's wrist. Miss Davis continued screaming and was pulling on the man from the back. The bus driver did nothing until, somewhere between Stewart and Normal, while the bus was in motion, he pushed the back door lever, the door opened, the man shot plaintiff in the stomach, and they fell out of the bus. Miss Davis either got off the bus or fell off on top of them. They lay stunned for a couple of seconds as the bus proceeded on and stopped a short distance away. Plaintiff rose to one knee, the man swore, took the pistol, and put it in plaintiff's face. Miss Davis got up and started to grab the man who pushed her aside and fired two or three shots at her at close range, but missed. The man ran west from the bus down the street.
Miss Davis stopped a motorist who was going west on 69th Street, and the police were summoned. Plaintiff could see them sitting in a squad car which was standing a half-block east at a stop sign on Stewart at 69th Street. The passengers got off the bus and the bus driver locked the doors and sat on the bus. Approximately fifteen minutes later, plaintiff was taken to a hospital.
Maureen Davis' testimony was substantially the same as plaintiff's, except she testified that plaintiff had been shot when he was in the street rather than on the bus, and added that at one point during the struggle on the bus plaintiff had knocked the gun from the assailant's hand.
The sole issue before us is whether the trial court erred in granting defendant's motion for a directed verdict at the close of plaintiff's evidence. The test for determining the correctness of the trial court's ruling is whether "all of the evident, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510.
• 1 Plaintiff contends that proof that he was assaulted and injured while a passenger on a common carrier is prima facie presumptive of defendant's negligence, and constitutes sufficient evidence to raise a question of fact for determination by the jury. As authority for this proposition, plaintiff directs our attention to the cases of N.Y., C. & St. L.R.R. Co. v. Blumenthal, 160 Ill. 40, 48-49, and Galena and Chicago Union Railroad Co. v. Yarwood, 15 Ill. 468, 471. In both of these cases, the court discusses the effect of proof of an "accident" to a passenger. In the Yarwood case, at page 471, the court stated:
"Proof that [plaintiff] was a passenger, the accident, and the injury, made a prima facie case of negligence." (Emphasis supplied.)
Similarly, the court in the Blumenthal case stated at page 48:
"* * * where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident. If the injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, a presumption of negligence on its part is raised." (Emphasis supplied.)
The point in both of these cases is that where a passenger is shown to have suffered accidental injury on a common carrier, and where the apparatus causing injury is solely under the defendant's control, the burden of proof shifts to the defendant. But where the injury is caused by an independent force not exclusively within defendant's control, such as an assault by a third person, a prima facie case is not established without an affirmative evidentiary showing of defendant's negligence as a proximate cause of ...