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Costello v. Chicago Transit Authority

OPINION FILED JULY 14, 1976.

ROSE COSTELLO, PLAINTIFF-APPELLEE,

v.

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



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS H. FITZGERALD, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Rose Costello, commenced this action to recover damages for injuries allegedly caused by the defendants, Chicago Transit Authority (hereinafter referred to as C.T.A.), and its driver, George Mokate. Subsequent to a jury trial, a general verdict for the plaintiff was returned in the amount of $75,000. The jury also responded in the negative to a special interrogatory pertaining to whether the plaintiff was contributorily negligent at the time of the incident at bar. Thereafter, the trial court entered a judgment on the general verdict, thus giving rise to the instant appeal.

In seeking a reversal of the trial court's judgment, or, in the alternative, a new trial, the defendants proffer four bases of review. They contend that (1) the verdict and judgment are against the manifest weight of the evidence; (2) the verdict and judgment are the result of prejudice to themselves and sympathy for the plaintiff; (3) the jury's response to the special interrogatory is contrary to law and fact; and (4) the award of damages is excessive.

A review of the record reveals that at the trial of the instant cause, both adversaries presented divergent accounts of the facts surrounding this controversy. In presenting her case-in-chief, on May 14, 1974, the plaintiff, age 71 at the time of incident, was first to take the stand. She testified on direct examination that on November 3, 1969, approximately at 6:30 a.m., she departed from her home and proceeded to walk to work on the west side of Pulaski Road. As she approached the southwest corner of the intersection of Pulaski Road and Augusta Boulevard, *fn1 she stopped and waited for the traffic signal, which was situated on the northwest corner of such intersection so as to control east-west traffic, to turn from red to green. While waiting for the light to change, the plaintiff initially observed the C.T.A.'s bus travelling southward, approximately a quarter of a block north of the Pulaski-Augusta intersection. Subsequent to noticing the locale of the bus as well as that the traffic light had turned green, the plaintiff thereupon took three steps within the designated pedestrian crosswalk to proceed eastward and was struck down by the front of the bus driven by the defendant Mokate.

Plaintiff was then taken to Saint Anne's hospital where she remained for six weeks. During the first two weeks of her hospitalization, she related that there was swelling in the front of her eyes. Moreover, when the swelling subsided, the plaintiff indicated that she could only see shadows. Further, even after her discharge from the hospital and an operation on her left eye in 1972, the plaintiff respectively expounded that she could still only see shadows and then, nothing at all. As a result of her blindness, the plaintiff indicated that she was no longer capable of resuming employment with a rubber company where she trimmed rubber tubes with an electrical blade.

On cross-examination, plaintiff reiterated much of what she had already testified. Besides recounting her conduct from the time she left her house until she was struck by the bus on the day in question, the plaintiff related that when the front part of the bus hit her, it knocked her forward on the street, but did not run over her. After plaintiff was unable to ascertain the distance which the bus thrust her forward or who rendered assistance to her, the trial court ordered a short recess since the plaintiff became upset. A colloquy between the trial court and counsels for both sides then ensued in chambers in which defense counsel's motion for a mistrial on the grounds that the plaintiff broke down and began to cry was denied.

On May 15, 1974, the cross-examination of plaintiff resumed and was directed to her health following the November 3, 1969, accident. In addition to testifying that when she originally arrived at the hospital, she experienced pain in her head, back, shoulder and left leg, plaintiff also related that she could not see and subsequent to being discharged from the hospital, her neighbor not only brought her meals but cleaned her apartment.

After counsel for the plaintiff called two doctors and a neighbor concerning the plaintiff's eyesight, Chicago police officer Martin O'Malley took the stand. He testified that when he arrived at the scene of the incident, plaintiff was being placed in an ambulance and the C.T.A.'s bus was parked in a manner such that the rear of the vehicle was approximately eight feet south of the southernmost part of the crosswalk. Although not contained in his official accident report, Officer O'Malley related that when he asked the defendant Mokate what had previously transpired, the latter responded that he was driving southbound on Pulaski Road and that he proceeded through the intersection while the light was in the process of changing. Upon completion of the above testimony, counsel for the plaintiff called another doctor regarding the plaintiff's vision, the defendant Mokate pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), and then rested her case.

Subsequent to calling a practicing optometrist and a circuit court judge who, as former attorney for the C.T.A., took the plaintiff's deposition on March 30, 1971, the defendants called two individuals who testified as to their respective observations of the intersection following the incident. Jim Petrecca, a foreman for a printing industry, stated that as he approached the intersection, he saw the plaintiff on her knees about two feet east of the west curb of Pulaski Road. He expounded that since the plaintiff was bleeding profusely from her face and knees, he stopped his automobile and rendered assistance to her. He further related that during the time he administered aid to the plaintiff, the C.T.A's bus was parked on the west side of the street, with the rear of said vehicle located approximately 50 or 60 feet south of the crosswalk.

At the conclusion of Jim Petrecca's testimony, the defendants called Stanley Leck, a former supervisor in the transportation department of the C.T.A. He testified that on the morning of November 3, 1969, he received a call informing him to proceed to the intersection of Augusta Boulevard and Pulaski Road. When he arrived, he observed the plaintiff sitting on the sidewalk about eight feet south of Augusta Boulevard. He also indicated that the rear of the C.T.A.'s bus was approximately 50 feet south of where the plaintiff was situated.

The defendant Mokate was next to take the stand and he presented his account of what transpired on the day in question. He testified that on November 3, 1969, approximately at 6:29 a.m., he was driving a C.T.A. trolley bus which contained 25 to 30 passengers and was travelling southward on Pulaski Road. As he proceeded to a bus stop located on the northwest corner of the Augusta-Pulaski intersection, he indicated that he was in the right hand lane and that there were not any cars in front of him. Subsequent to stopping the bus at such location in order to allow passengers to board the vehicle, the defendant Mokate looked at the traffic light, observed it was green, and started through the intersection at a speed of five miles per hour. When the front of the bus was about 75 feet south of the Augusta-Pulaski intersection, a female passenger informed him that there was a woman alongside the bus. The defendant Mokate then heard a thump on the right side of the bus near the middle exit door. He thereupon stopped the bus 75 feet from the crosswalk, departed from the vehicle and observed the plaintiff, whose head and nose were bleeding, sitting at the curb near the right rear corner of the bus. After an unsuccessful attempt to converse with the plaintiff, the defendant Mokate telephoned his supervisor who, in turn, sent out a supervisor (Stanley Leck) as well as called the police and an ambulance.

Upon the arrival of the police, the defendant Mokate informed them about the controverted incident. Subsequent to testifying that he never told the police that the traffic light changed while he was in the intersection, the trial judge (1) ordered a recess due to the plaintiff's crying at the witness table for 15 minutes and (2) instructed counsel for both sides to meet with him in chambers. During such meeting, defense counsel renewed his motion for a mistrial which the trial court denied. Moreover, when the direct examination of the defendant Mokate resumed, another unsuccessful motion for a mistrial was made by defense counsel on the basis that the plaintiff was removed from the courtroom by her attorney without any explanation to the jury.

The final bit of testimony offered to the jury by the defendants was contained in the evidence deposition of Mary Sebastian, a passenger on the bus involved in the incident. She testified that she was sitting in the first front seat across from the driver when the bus stopped for a red light at the Augusta-Pulaski intersection. As the bus started to cross Augusta Boulevard, she looked out of the window and saw the plaintiff walking eastward in a very unsteady manner. She continued to observe the plaintiff and started to scream when it appeared that the latter tripped or lurched up against the bus. However, even though she stated that she saw the plaintiff sitting on the curb in the crosswalk when she alighted from the bus, she related that she did not see nor hear any contact between the bus and the plaintiff. Moreover, on cross-examination, Mary Sebastian stated that she did not see the plaintiff fall, trip, or step off the curb. She was also unable to ascertain the point of impact between the bus and the plaintiff.

At the close of all the evidence, defense counsel made a motion for a directed verdict on the grounds that the defendants were not negligent and the plaintiff was contributorily negligent. Besides denying this motion, the trial court also rejected defense counsel's renewed request for a mistrial due to the plaintiff's absence from the courtroom. Both counsels then presented their respective closing arguments and the cause was submitted to the jury. On May 21, 1974, the jury not only returned a verdict for the plaintiff in the amount of $75,000 but also responded in the negative to the defendants' special interrogatory concerning whether the plaintiff was guilty of contributory negligence. A judgment on the verdict was entered by the trial court on May 22, 1974. ...


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