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Daemicke v. Chicago Transit Auth.

MAY 5, 1972.

ESTELLA M. DAEMICKE, PLAINTIFF-APPELLANT,

v.

CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 21, 1972.

In a suit to recover damages for personal injury, judgment was rendered on a jury verdict in favor of defendant. After the denial of plaintiff's post-trial motion, plaintiff prosecuted this appeal, raising two issues: (1) that the verdict was a product of prejudicial conduct by defense counsel, and (2) that the verdict was contrary to law and to the manifest weight of the evidence.

The testimony at trial brought out the following facts: On the afternoon of September 10, 1963, plaintiff, then age 68, and her friend, Martha Miller, walked to the corner of 69th and Halsted Streets to wait for a bus. When the bus arrived, it remained in the street about 10 feet from the curb, requiring plaintiff and the others at the bus stop to step off the curb and to board the bus from the street. The curb was from 6 to 12 inches high, and the first step of the bus was from 12 to 18 inches above street level. Plaintiff, holding onto one side for support, boarded the bus with one step, and as she was taking the second step, her right leg turned under her, and she fell. She screamed, "my leg, my leg." The bus driver said, "hurry, hurry, lady," but plaintiff could not move, either to climb the remaining steps or to get off the bus. The bus driver made no move to assist her. A uniformed CTA supervisor or starter who had been standing across the street came over and said, "I'll get her off." He helped plaintiff off the bus and onto the curb, and after telling her to "hang onto the mailbox" which was on the sidewalk, he walked away.

Approximately 10 people boarded the bus before plaintiff did, and about six or seven people got on the bus after plaintiff had been helped off. After plaintiff had been assisted from the bus, Martha Miller stayed with her and called for a cab. While waiting for the cab, plaintiff sat on a stool which was given her by the man who ran a nearby newsstand. Upon reaching plaintiff's home, Mrs. Miller and the cab driver helped plaintiff into her apartment, as she was having great difficulty in getting up the stairs. Mrs. Miller, discovering that plaintiff had a cane in the apartment, believed that plaintiff would be all right, and soon left. She had been with plaintiff on prior occasions when plaintiff had had no trouble in boarding busses despite their high steps.

When plaintiff was alone, she became aware that her right knee was swollen and "terribly painful." She used the cane to try to get to the telephone, but she fell again and lay on the floor for three hours until her son found her and took her to the hospital. Even with the aid of her son, plaintiff had a difficult time in descending the stairs, and fell once more. Upon arriving at the hospital, plaintiff received emergency care, and two days later, her leg was operated on. After the operation, she wore a cast on her leg from the hip down, and three weeks later, a lighter cast was substituted. When the cast was removed, she had whirlpool therapy and then began to walk, using a walker as a brace. Before the accident, she had no trouble walking, but now she walks slowly and has trouble with stairs and curbs.

The orthopedic surgeon who testified at trial was the doctor who examined plaintiff when she was first brought into the emergency room and who operated on plaintiff's leg two days later. He took plaintiff's case history and reported that plaintiff had informed him that the accident occurred when she was bumped by another person as she was getting on a CTA bus. He testified at length as to the emergency treatment he rendered to plaintiff at the hospital, and to the later surgery which he performed. There was resultant loss of some motion in her leg which he testified was permanent, but not apt to require medical attention in the future.

Plaintiff's amended complaint alleged that defendant was negligent in one or more of the following ways:

"(a) Failing to select a reasonably safe place for plaintiff to board the bus;

(b) Failing to take proper precautions for the safety of passengers, including plaintiff, while they boarded said bus;

(c) Failing to stop said bus for the purpose of loading passengers within the proper area; and

(d) Employing an unreasonably dangerous and defective bus in that the front step, by which passengers gain entrance to the interior of said bus, was too high from the ground level from which passengers boarded."

Defendant filed an answer, but, at the trial, defendant offered no testimony and presented no evidence.

• 1 Set forth in plaintiff's brief are five specific comments made by defense counsel during his closing argument which plaintiff claims were so prejudicial as to result in a verdict based not upon the evidence but upon aroused passions. In two instances, plaintiff made no objections at the time the comments were made, and they cannot now be raised on appeal. (County of Cook v. Colonial ...


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