APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiff, Eugene Harris, commenced this action to recover damages for personal injuries allegedly caused by the negligence of the defendants, The Union Stock Yard & Transit Company of Chicago (Union), Construction Equipment Manufacturing Association (Construction Equipment), Illinois Central Railroad, and The Chicago River & Indiana Railroad Company. At the close of plaintiff's evidence, upon trial before a jury, the trial court directed a verdict in favor of defendants. Plaintiff appeals from the judgment thereon and the subsequent denial of his motion for a new trial.
On appeal, plaintiff has abandoned his claims against defendants Illinois Central Railroad and The Chicago River & Indiana Railroad Company. The issues presented are whether the trial court erred in directing the verdict for defendants Union and Construction Equipment, and also in excluding certain evidence offered by plaintiff.
Plaintiff, in his brief filed in this court, has waived his claims against the two defendant railroads. A careful scrutiny of the record on appeal discloses that no evidence whatsoever had been presented against defendant Construction Equipment, and that plaintiff has not sustained the burden of proof as to that defendant. Therefore, the judgment of the trial court entered in favor of defendant Construction Equipment is affirmed. Our consideration will accordingly be limited to the evidence presented against the remaining defendant Union.
The essential facts herein are not in dispute. Plaintiff, a millwright employed at the Amphitheatre building, upon leaving the building on February 8, 1969, between 4 and 4:30 P.M., sustained personal injuries when he slipped while climbing over a standing railroad flatcar to go to a parking area for his automobile. Plaintiff and four co-workers testified as to the issue of liability. No evidence was presented by defendant. The testimony of the witnesses is hereinafter summarized.
The area of the occurrence is the Chicago Amphitheatre building, located on the west side of Halsted Street between 42nd and 46th Streets, in Chicago, and the area generally to the west of the building. Immediately west of the building is a fence-enclosed parking lot bounded by the building on the east, and by fences on 42nd Street on the north, by 46th Street on the south, and on the west by a north-and-south fence located immediately east of and parallel to a set of railroad tracks with a spur connection. Gates are located on the north, south and west fences of the parking lot. On the west fence there is a pedestrian gate at approximately 43rd Street, and a larger gate for vehicles approximately 75 feet south. Immediately west of the above railroad tracks is a parking area referred to as the "pig pens" area because of its former use. The plaintiff and his fellow-workers parked their automobiles there on the date of this incident. This area is divided by an east-west roadway which leads into the large or vehicular west gate of the parking lot.
John Schuljak testified that he worked at the Amphitheatre 3 or 4 days prior to the occurrence. On the date of plaintiff's accident the witness attempted to enter the parking lot through the south gate but was ordered to park in the pig-pen area. He did not notice anything when he walked through the west gate upon arrival, but when he retraced his route after work he encountered a train of cars extending one-quarter mile in each direction from the west gate. He saw plaintiff fall. He always tried to park in the parking lot but was always refused admission.
Delos Miller testified that on February 8, 1969, he went to park in the parking lot but was told at the gate, by a guard in a yellow rain coat (he did not know the guard's name), to park near a fence over by the railroad. He complied, and used the west gate to go to his job in the Amphitheatre. The west gate is approximately one block from the north gate and two blocks from the south gate.
George Ushako, a fellow-carpenter, testified that on the day of plaintiff's injury he attempted to park in his usual place but "someone" sent him to the parking area behind the railroad. He finally parked near 42nd Street in the pig-pen area. He entered and also left by the north gate at 42nd Street. He did not take the route used by plaintiff to return to the parking area, but walked around the railroad to the north. The train consisted of 20 flatcars and boxcars.
Frank Maracic, a co-worker, testified that prior to parking in the area of the Amphitheatre on the day in question, he had a conversation with an Amphitheatre man at a small security building at the entrance to the parking lot. The man, whom he did not know, would not let any one enter.
Plaintiff testified that on the date of his injury he was a carpenter who had worked for 3 or 4 days for United Exposition at the Amphitheatre. He drove to work daily, and on this day tried to drive into the parking lot through the west entrance. Two men wearing Amphitheatre type uniforms stopped him and told him he could not park in the lot but must park in the pig-pen area. He complied, and took his tools and walked through the west gate to the Amphitheatre. He then noticed the west pedestrian gate was locked. Plaintiff left the job between 4 and 4:25 P.M. to return to his car and encountered a parked train at the west gate which stretched as far as he could see. Other persons were crawling under and over the cars of the train to get to their automobiles. He did not check the west walkway nor the north or south gates, but proceeded to climb over a flatcar directly in front of the large gate. First placing his tool box, which weighed in excess of 90 pounds, on the flatcar, he climbed on the coupling, then onto the bed of the flatcar, picked up the tool box and carried it to the center of the car, and fell as he went to get off the car. The bed of the flatcar was 5 1/2 feet from the ground and was wet and greasy. The weather was damp and wet, and it was turning dark.
The trial court rejected plaintiff's offer of proof that John Schuljak would testify that the parking lot attendants prevented parking in the lot and informed workers they must park where plaintiff did; that he did not see any men walking to 43rd or 46th Street after work on the day in question; also that Delos Miller would testify that he left work with 10 to 14 others who faced the same obstacle, and that he also had to climb over a flatcar which was wet and covered with grease. Further, the court rejected the offer of proof that Frank Maracic would testify that when he left at 1:30 P.M. he noticed quite a few flatcars blocking the route; he climbed over them and noticed they were damp with snow; and that he would also testify as to the place where workmen always parked, and as to his conversation with the Amphitheatre security people when he attempted to enter the parking lot on the day of the accident.
Plaintiff did allege in his amended complaint that defendants Union and Construction Equipment "owned, operated, controlled and maintained certain premises at or near west 43rd and South Halsted, City of Chicago, and more specifically certain premises on the west side of the amphitheatre, at or near west 43rd and South Halsted in the City of Chicago * * *." In their respective answers to the complaint defendant Construction Equipment denied the allegation, and defendant Union admitted it. During ...