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Marcano v. Chicago Transit Authority

SEPTEMBER 13, 1974.

ERNESTINE MARCANO, PLAINTIFF-APPELLANT,

v.

THE CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ALFONSE F. WELLS, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from the entry of judgment in favor of defendants Joseph Harrell and the Chicago Transit Authority (C.T.A.) and the denial of her post-trial motion to vacate the judgment and enter judgment for plaintiff or, in the alternative, to grant plaintiff a new trial. Her action seeks to recover damages for personal injuries sustained when she alighted from a C.T.A. bus driven by Harrell. On appeal she contends: (1) the judgment is contrary to the overwhelming weight of the evidence or, alternatively, is against the manifest weight of the evidence; and (2) the trial court's failure to require defendants to produce a signed statement of a witness became prejudicial error when defendants were permitted to use that statement in cross-examination of the witness and were allowed to introduce the statement into evidence.

The following evidence was adduced at trial.

Ernestine Marcano testified on her own behalf.

She was a passenger on a bus owned by defendant C.T.A. and operated by defendant Harrell on April 2, 1967. There were approximately 10 to 12 other passengers. She pulled the cord buzzer indicating to Harrell that she wished to get off the bus at 70th Street and Wentworth Avenue. The bus stopped at the corner, a few feet before 70th Street and not too close to the west side of Wentworth Avenue. She exited from the front door. She was stepping down the steps holding the railing and had just placed her right foot onto the street when the doors closed trapping her left arm and leg. She screamed and as the bus pulled away, hopped alongside the bus until her body came free of the door and she fell into the street underneath the bus. The bus stopped and some people appeared who carried her into a nearby church. A police squadrol took her to the emergency room at St. Bernard Hospital where her left arm was placed in a plaster cast. Due to difficulties in the healing of this arm, she was not discharged from medical treatment at the hospital until June 30, 1967.

On cross-examination plaintiff testified that she did not remember speaking to the bus driver after the accident. Only one witness, Mr. Canada, gave her his name the day she was hurt. He also visited her at home when she was released from the hospital and they discussed the accident. She does not know anyone named Richardson.

David E. Canada, Jr., for the plaintiff.

On the date in question he was standing almost at the bus stop on the corner of 70th Street and Wentworth Avenue talking to Trucksy Richardson when a C.T.A. bus came to a halt and plaintiff alighted from the front door. No other passengers exited at the stop. She had one foot on the ground when the bus closed its doors on her arm and started into traffic. He did not recall which arm was caught in the door. She attempted to move along with the bus before falling. The right front wheel ran over part of her left arm. She was dragged approximately 10 feet before he could come to her aid. When he reached her, she was lying on the street between the front and rear door with her head and left arm underneath the bus. The witness and another person assisted plaintiff into a nearby church while Richardson held the church door open. Two Chicago police officers arrived to take plaintiff to the hospital. He did not give them his name although he did tell one officer that he had witnessed the accident. He followed the squadrol to the hospital in his car and gave plaintiff's daughter his name. He did not know plaintiff prior to this accident.

On cross-examination, Canada admitted to having been convicted of numerous felonies. He also admitted to having discussed the accident when he visited plaintiff at her home 2 1/2 to 3 years after the accident and to having seen her on the street on two other occasions.

Trucksy Richardson for plaintiff.

On the date in question he was standing outside the Kindreck Memorial Baptist Church at 70th Street and Wentworth Avenue with David Canada and Alton Harvey. A C.T.A. bus came to a stop in front of the church. Plaintiff was stepping out the front door of the bus when the door closed on her foot. He does not remember which foot was trapped. The bus headed south dragging plaintiff along the street with it for a few feet before halting again. He turned and walked into the church going downstairs into the basement. He did not talk to anyone that day regarding the accident. He had never met plaintiff prior to this accident.

On cross-examination he admitted that the first time he mentioned that he had witnessed the accident was 2 months prior to this trial when he talked to plaintiff's attorney.

Alton Harvey for plaintiff.

On the day in question he was standing with Canada and Richardson when a C.T.A. bus came to a stop approximately 15 feet from the entrance of the church. Plaintiff was getting off the bus using the front entrance located behind the right front wheel. She was holding onto the guard rail with her left hand, and had her right foot on the ground with her left foot on the bottom step when the door closed on her left arm. He ran to the bus and started pounding on the rear door as the bus moved down the street dragging plaintiff about 15 feet before stopping. He went over to where she was lying between the front and rear doors of the bus and picked her up off the ground. He further testified that plaintiff told the bus driver, in response to his question, that he closed the door on her arm. The witness helped plaintiff into the church where they waited until two ...


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