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Le Flore v. Chicago Transit Authority

MAY 16, 1973.

ROBERT LE FLORE, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS W. BARRETT, Judge, presiding.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Robert Le Flore, brought this action in the Circuit Court of Cook County to recover damages for personal injuries sustained while allegedly a passenger on a bus operated by the defendant, Chicago Transit Authority. The jury returned a verdict of $10,000 in favor of the plaintiff, upon which judgment was entered, and the defendant appealed.

The jury returned its verdict on October 27, 1971, and assessed the plaintiff's damages at $10,000. The trial court entered judgment upon this verdict immediately; however, this was apparently unknown to the plaintiff who filed a post trial motion to increase the ad damnum of his complaint, which had been stated at $7,500 to conform to the verdict. The defendant also filed a post trial motion seeking a new trial. The defendant's motion was denied on January 11, 1972, and the plaintiff withdrew his motion to increase the ad damnum on March 14, 1972. The defendant filed its notice of appeal on April 11, 1972.

The defendant raises two issues on appeal: whether the court erred in refusing to give to the jury a special interrogatory tendered by the defendant and whether the court erred in refusing to grant the defendant a new trial because of the plaintiff's allegedly perjured testimony. The plaintiff raises a third issue: whether this court has jurisdiction of the present appeal.

We turn our attention first to the question of jurisdiction. The plaintiff points out that the notice of appeal was filed ninety-one days after the entry of the order denying the defendant's post trial motion and contends, therefore, that it was not filed within the time required by the statute. (See Ill. Rev. Stat. 1971, ch. 110A, par. 303.) He argues that filing the notice within the specified time is jurisdictional and cannot be waived. (Ill. Rev. Stat. 1971, ch. 110A, par. 301; Wishard v. School Directors of District No. 11, 279 Ill. App. 333.) The plaintiff has previously raised these contentions in a motion to dismiss the appeal filed in the trial court, which was denied, and in a motion in this court, which was likewise denied. Upon considering them a second time we again conclude that they are without merit.

• 1 We do not disagree with the law to which the plaintiff calls our attention. The requirement is that the notice of appeal be filed with the Clerk of the Circuit Court within 30 days after the entry of the final judgment appealed from, or, if a timely post trial motion is filed, within 30 days after the entry of the order disposing of the motion. (See Ill. Rev. Stat. 1971, ch. 110A, par. 303.) In the present case, both parties filed post trial motions. The defendant's motion was disposed of on January 11, 1972, but the plaintiff's motion pended until March 14, 1972, when it was withdrawn. Therefore the defendant's notice of appeal, which was filed on April 11, 1972, was within 30 days of the disposition of the plaintiff's post trial motion and was timely. In view of this we conclude that this court has jurisdiction of the present appeal and we so hold.

We next turn our attention to the issues raised by the defendant, beginning with whether the court improperly refused to give the defendant's special interrogatory. A thorough understanding of this issue requires that some of the evidence presented at trial be set forth. The plaintiff testified that his injuries occurred on December 21, 1967, when he boarded the defendant's bus at the corner of Monroe Street and Homan Avenue. As he did so, the driver closed the door on his leg and drove for approximately two blocks in that manner down Homan to its intersection with Jackson Boulevard. When the bus ultimately pulled to the curb, the plaintiff's left foot, which was outside the bus, struck a fire plug, breaking his leg. Police and a fire department ambulance were called, and the defendant was transported to Cook County Hospital for treatment. This testimony was corroborated by James Johnson, an acquaintance of the plaintiff, who was with him on the bus.

Donald O'Sullivan, an investigator for the Chicago Transit Authority, testified on behalf of the defendant that he visited the site of the incident and that there is no fireplug there. The records custodian of Cook County Hospital testified that she could not locate any medical records of a Robert Le Flore for the period December 21, 1967, to April 1, 1968. Richard Iwanowski, a Chicago police officer, testified that his beat included the area of the accident on December 21, 1967, and that he did not recall investigating any accident there on that date and had made no report of any.

The special interrogatory in question is as follows:

"Was the plaintiff treated in any way by Cook County Hospital for any alleged injuries resulting from the alleged occurrence on the Chicago Transit Authority but on December 21, 1967?"

The defendant argues that this was a material issue because of the conflicting inferences to be drawn from the plaintiff's testimony that he was treated at Cook County Hospital immediately following the accident and the testimony of the records custodian that she could locate no medical records for him. We will not dispute that the issue may have been material; however we do not agree that it was the proper subject of a special interrogatory.

• 2, 3 Section 65 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 65) provides that:

"The jury may be required by the court, and must be required upon the request of any party, to find specially upon any material question or questions of fact stated to them in writing."

However, a special interrogatory is not proper unless it relates to an ultimate fact in the case and unless an answer responsive to it would be inconsistent with some general verdict which might be returned upon the issues in the case. (Kaspar v. Clinton-Jackson Corp., 118 Ill. App.2d 364; Hulke v. International Mfg. Co., 14 Ill. App.2d 5.) A special interrogatory which asks for a finding as to a mere evidentiary fact ...


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