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Perzovsky v. Chicago Transit Authority

NOVEMBER 4, 1974.

TILLIE PERZOVSKY, INDIVIDUALLY AND AS ADM'RX OF THE ESTATE OF HARRY PERZOVSKY, A/K/A HARRY PERZOV, PLAINTIFF-APPELLEE, CROSS-APPELLANT,

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLANTS — (THE CITY OF CHICAGO, DEFENDANT, CROSS-APPELLEE).



APPEAL from the Circuit Court of Cook County; the Hon. JOHN C. FITZGERALD, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

Tillie Perzovsky brought suit below, both in her capacity as administratrix of her deceased husband's estate and individually, against the Chicago Transit Authority (hereinafter CTA) and the City of Chicago (hereinafter the City). She alleged in her complaint that both defendants had negligently caused the wrongful death of her 65-year-old husband. He had been found lying in the street severely injured, barely conscious, and unable to speak around 6 A.M., February 20, 1967, by a woman about to enter a CTA bus. He was lying between the right front wheel of the bus and a utility pole positioned on the curb. There were no eyewitnesses to the accident. Plaintiff contended below that deceased had been struck by the CTA bus and bounced into the utility pole maintained by the City. The jury found the CTA guilty and the City not guilty. Damages were awarded to plaintiff in the amounts of $75,000 in her capacity as administratrix and $1,440.50 in her capacity individually. The trial court entered judgment on the verdict but reduced her recovery as administratrix to $30,000.00 in accordance with the then existent limitation provision of the Injuries Act (Ill. Rev. Stat. 1967, ch. 70, par. 2).

The CTA has appealed, asking that we either reverse outright the judgment of the trial court or reverse and remand the cause for a new trial. Plaintiff, in addition to being the appellee, has cross-appealed against the defendant for procedural reasons. In the event that we should reverse the judgment of the trial court as to the CTA, she seeks that we also reverse as to the City and remand the cause for a new trial against both.

The CTA contends (1) that plaintiff failed to prove that deceased exercised due care for his own safety; (2) that the trial court erred when it admitted testimony by an ambulance attendant respecting what deceased had told him about the accident on the way to the hospital; (3) that plaintiff failed to establish that the CTA was negligent; (4) that plaintiff failed to show that the CTA driver's violation of a municipal ordinance (Municipal Code of Chicago 1958, ch. 27, par. 276(b) (c)) caused deceased's injuries or that the ordinance was enacted as a public safety measure; (5) that in any case the ordinance is unconstitutional; and (6) that the jury's verdict is against the manifest weight of the evidence. We hold otherwise and affirm the judgment of the trial court.

Two CTA bus drivers were involved in the suit below. Testimony at trial established that Orville Murray, the driver of what we shall call Bus A, pulled into the south-bound bus stop on Lincoln Avenue at the corner of Lincoln and Irving Park Road. His route had previously taken him east on Foster (5200 North) to Lincoln where he had turned south. He dropped off a few passengers and waited for the light at the intersection to turn green. When it did, he proceeded across Irving Park and down Lincoln. He stated that at no time did he see the deceased either as a passenger on his bus or walking alongside his bus or lying at the curb.

Constantine Desch, the driver of what we shall call Bus B, testified that his route on Lincoln had begun farther north than the other driver's route. Specifically, he had picked up some passengers at Lincoln and Berwyn (5300 North — one block north of Foster) and proceeded south on Lincoln. He arrived at Lincoln and Irving Park just behind bus A which was stopped in the bus stop. He pulled up a few feet behind bus A and stopped outside the bus stop. The front end of his bus was angled in toward the curb about 3 feet from it and the back end was approximately 6 feet away from the curb. He opened the doors of the bus. One lady got on. He did not know whether any passengers got off the bus. When the light changed, bus A moved out of the bus stop and he slowly moved his bus forward into the space previously occupied by bus A. He stopped about 3 feet from the curb. There he noticed a woman approaching the bus stop whom he recognized as a regular passenger. He waited for her to board the bus. When she got on, she told him that there was a man lying in the street. He got off the bus and noted that the man was lying between the right front wheel of the bus and the utility pole at the curb. An ambulance was summoned. It arrived in approximately 5 minutes. The man was taken to a hospital where he died within a few hours. The ambulance attendant testified over objection by the CTA that deceased told him he had been struck by a "vehicle." Deceased did not specify what kind of vehicle struck him.

A pathologist for the Coroner testified that deceased suffered injuries and fractures caused by a compression force and roll.

The driver of bus B originally stated that the first time he saw the deceased that morning was when the woman told him about the man in the street and he got off the bus to check. He added that he had not seen anyone standing or lying in the street as he pulled into the space vacated by bus A. He also stated that he did not hit anyone. Subsequently, however, he admitted that on previous occasions the deceased had been a passenger on his bus and that he had picked up two men at Lincoln and Berwyn that morning one of whom might have been the deceased. He further admitted that he had previously testified at the coroner's inquest into the death of the deceased that deceased had been a passenger on his bus that morning. In addition, he admitted that deceased had been found that morning to be carrying a transfer from his bus.

Both drivers testified that they saw no snow packed along or on the curb. However, a police officer who investigated the accident testified that there was snow packed on the curb. Further, a witness for the CTA testified that U.S. Weather Bureau reports for the time of the accident listed that there was some snow still on the ground from a previous snowfall.

The woman who first noticed the deceased lying in the street testified that she saw him lying on the ground before either bus A or bus B arrived. She stated that bus A passed her without stopping and that she had to wait for bus B to pull up to her before she could tell the driver about the man.

Police officers testified that they were unable to find any eyewitnesses.

Plaintiff produced a witness who testified that he had known the deceased for about 25 years, that deceased was married, supported his family and was, in his opinion, a very careful man.

Plaintiff's theory of the case was that her husband had boarded bus B at Lincoln and Berwyn and alighted from the bus when it pulled up behind bus A at Lincoln and Irving Park. She maintained that he was unable to get to the sidewalk without climbing over some snow piled up on the curb which he was unable to do because of his age. As a result, he walked in the street alongside the bus toward the corner. He was struck by the bus and bounced into the utility pole when the bus pulled up to the bus stop at the intersection. She argued that the driver of bus B violated his duty of due care toward the decedent by neglecting to provide him with a safe place in which to alight from the bus. She also cited a provision of the Municipal Code which prohibits bus drivers from discharging passengers anywhere except in a designated bus stop where the bus is roughly parallel to the curb with its right front wheel within 18-inches of the curb. She argued that the driver of bus B had violated this provision by his own admission and that in so doing had prima facie negligently placed the deceased in a position of great peril ultimately resulting in his death. Finally, she contended that the defendant City was negligent in that it had placed a utility pole too close to the curb.

The CTA maintained that plaintiff's proof failed to establish that either bus struck the deceased and that, in any case, the deceased was contributorily negligent for being in the street instead of on the sidewalk.

Defendant City contended that they had no notice of the danger of the utility pole and that therefore they were not liable.

The jury found the City and the driver of bus A not guilty. They found the driver of bus B ...


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