APPEAL from the Circuit Court of Cook County; the Hon. GLENN
T. JOHNSON, Judge, presiding.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a $2500 judgment entered on a verdict for plaintiff as compensation for injuries sustained while attempting to enter defendant's cab.
On November 2, 1960, defendant's driver, James Cheppell, stopped his cab at the corner of 36th Street and Cottage Grove and had a ten-minute discussion with plaintiff, a prior acquaintance. There is conflicting testimony about what followed this conversation.
Plaintiff testified that after he had been leaning through the open window talking to Cheppell, he asked how much it would cost to be driven to 40th and Oakwood. Cheppell is said to have replied, "About 35 cents. Get in." Plaintiff claims he then attempted to open the right front door but was unable to do so. He stepped back about a foot when Cheppell leaned across the front seat and forced the door open. As it was jarred loose, the door flew open and struck plaintiff in the face, breaking his glasses and causing injury to his eye. Cheppell immediately took plaintiff to Michael Reese Hospital.
Defendant testified that he did not offer to drive plaintiff anywhere and did not attempt to open the door for him. Rather, he states that after they had been talking about old times, plaintiff opened the right front door and, as he did so, struck himself in the face with the door.
The case was tried to a jury which, in addition to the forms of general verdict, was asked to respond to the following special interrogatory:
"Do you find from consideration of all the evidence and under the instructions of the court that the plaintiff was guilty of contributory negligence which proximately contributed to cause his alleged injury?"
The jury returned a general verdict of $2500 for plaintiff, but, by its affirmative response to the special interrogatory, also found plaintiff guilty of contributory negligence. Upon the receipt of the inconsistent findings and over persistent objections by counsel for defendant, the judge instructed the jury in the following manner:
"Ladies and gentlemen of the jury, you have brought in an inconsistent verdict.
Now, if you intend to give the defendant * * * the plaintiff $2,500, then your answer to the interrogatory must be no. If you decide not to give the plaintiff anything, then your answer is yes.
I'm going to ask you to reconsider it. I don't feel that you understood what you were doing.
MR. LINDMARK: Your Honor, objection to the entire procedure.
THE COURT: Very well, your objection is noted, Mr. Lindmark.
FOREMAN: Your Honor, may I say, we had quite a deliberation on this. There ...