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Smith v. West Suburban Transit Lines

MARCH 14, 1975.

ROBERT SMITH, PLAINTIFF-APPELLANT,

v.

WEST SUBURBAN TRANSIT LINES, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a personal injury action wherein plaintiff, a passenger on a chartered bus of defendant, alleged he was assaulted by a stranger who became angry when the bus obstructed traffic in such a fashion that the stranger's car could not proceed.

At the close of plaintiff's case, defendant's motion for a directed verdict was granted and the only issue presented on appeal is the propriety of this ruling. The facts are essentially as follows:

On April 27, 1969, plaintiff, a deacon of the St. Paul Baptist Church, was on the bus returning from a church-sponsored outing. When the bus arrived at the church on South Union Street, the driver pulled the bus into the curb at such an angle that the rear of the bus extended across the center line of the street, blocking traffic in both directions.

A few moments after the bus stopped a man, later identified as Mudd, approached the bus and, in a profane, loud manner, told the bus driver to move the bus so that his car could pass.

Mary Johnson, a church member on the bus, testified that Mudd entered the bus and told the driver to move the bus, using "words stronger than damn." On cross-examination, she stated that Deacon Smith and some of the other church members tried to induce Mudd to leave the bus, but that the driver did not do or say anything.

Corienne Jones, also a church member on the bus, saw a stranger (Mudd) come up in the bus and start "hollering" at the driver and telling him to move the bus. The driver did not move the bus nor did Mrs. Jones hear him say anything. The stranger left the bus and Mrs. Jones got off. She did not see the stranger when she disembarked.

Plaintiff testified that Mudd came up to the bus and demanded that it be moved. He was using "all kinds of filthy words." He said, "If you don't move the bus I am going `to do this and that'," using cusswords. He was "talking to the bus driver, from back to the bus driver, back to the passengers." The bus driver did not say anything. Mudd then left the bus. Plaintiff could not tell where he went but thought he was gone. Plaintiff then started to get off the bus when it was "my time to move." The pastor, the associate minister, Reverend Gary, and another deacon had already left the bus. Plaintiff stated, on cross-examination, that the pastor had gone to make a call to the police. By the time plaintiff reached the front of the bus and was at the top of the steps next to the driver, Mudd had returned. Mudd then grabbed plaintiff around the waist, and another man accompanying Mudd began twisting plaintiff's leg and banging it against the door frame of the bus. Plaintiff was holding onto the pole of the bus connected to the door. He estimated the scuffle lasted a couple of minutes or more, but in a deposition he had stated that Mudd's friend held onto his leg for only a few seconds.

Plaintiff's last witness was Robert Gary, an associate minister of the church. He stated that he was the first person off the bus. It faced south on Union Street but was pulled into the curb in such a manner as to block traffic on Union in both directions. There was a car going north on Union which stopped, and a man (Mudd) got out of the car, came over to the bus, and asked the driver to move. When the driver did not reply, Mudd, who appeared to be drunk, said, "Move this `so and so' bus" and then yelled, "I will have to have it moved" and went back to his car. Gary then testified, "[H]e [Mudd] had a partner, and his partner got out of the car and picked up an iron pole." Together they returned to the bus. Gary was standing outside the bus. To his knowledge, no one else had left the bus. He estimated four or five minutes passed from the time Mudd first came over to the bus until he returned. When Mudd and his partner returned to the bus, they both stepped into it at practically the same time. A couple of seconds passed from the time they entered the bus until Gary saw Mudd's companion pulling Mr. Smith's leg. From the time the stranger started pulling on Smith's leg until they landed in the street, a matter of seconds passed.

As a result of this incident, plaintiff sustained a broken leg and was unable to work for several months after the incident.

After plaintiff rested his case, defendant's motion for a directed verdict was granted for the reason that the occurrence took place so quickly that the bus driver had no reasonable opportunity to do anything.

OPINION

• 1 It is well settled in Illinois that a verdict should be directed only where all the evidence viewed in its aspect most favorable to the party opposing the motion so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514.

• 2-4 A carrier is liable for an assault on a passenger by a stranger if the assault could have been anticipated and prevented by the exercise of reasonable care and diligence. (Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497.) Because of the high degree of care which a carrier owes to its passenger, it will be considered negligent (a) if the assault is reasonably foreseeable; and (b) if it could have prevented the injury and failed to do so. (Chicago & Alton R.R. Co. v. Pillsbury, 123 Ill. 9, 14 N.E. 22; Watson v. Chicago Transit Authority, 133 Ill. App.2d 380, 272 N.E.2d 690, rev'd on other grounds, 52 Ill.2d 503, 288 N.E.2d 476; Sue v. Chicago Transit Authority (7th Cir. 1960), ...


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