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Miskunas v. Chicago Transit Authority

OPINION FILED SEPTEMBER 8, 1976.

MARY M. MISKUNAS, PLAINTIFF-APPELLANT,

v.

THE CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from a judgment of the Circuit Court of Cook County entered on September 13, 1974, sustaining the defendant's motion to dismiss after the close of the plaintiff's case.

The issue on appeal is whether the plaintiff failed to establish a prima facie case of negligence such that no contrary verdict based upon that evidence could ever stand.

On January 6, 1971, the plaintiff, then aged 38, rode a Chicago Transit Authority bus home from work and got off at the northeast corner of Albany and 39th Streets in the City of Chicago. She was wearing boots with low, flat heels, and she was carrying a handbag and a plastic bag with her shoes in it.

It was dark and very cold and there was a covering of snow on the ground. The Local Climatological Data bulletin issued by the National Weather Service shows that on January 3, 1971, there had been 7.1 inches of snow, and on January 4, 1971, there was a trace of snow. The bulletin indicates the temperature fell from a maximum of 43° on January 3 to a maximum of 8° on January 6. Finally, the bulletin indicates that on the morning of January 6, there were two inches of snow on the ground. The plaintiff testified that a light snow covered the streets and sidewalks, but she did not recall that it was piled up.

The bus stopped in a crosswalk parallel to the curb about three feet from the curb. The plaintiff, who was the only passenger to get off the bus at Albany, had her handbag and shopping bag in her left hand and held onto the rail with her right hand. She testified her injury occurred as follows: "I know I was holding onto that rail just going down slowly, and as my foot had touched what I had seen of the snow area, after stepping down carefully, I slipped very quickly, but I was still holding onto the rail as much as I could with my right hand. And then I just lost control and slipped right off and fell." She testified she couldn't see the ice she stepped on, until she stepped down.

She was assisted by passersby who helped her to her home from which she was taken to the hospital. It was determined she had broken her leg, and she was in a cast for five months.

The driver of the bus made no attempt to assist the plaintiff after she fell, but gave his name and number on a card when one of the passersby urged her to ask for it.

Benjamin Fenger, a registered land surveyor, testified he surveyed the corner where the injury occurred and determined the drop in elevation from the center line to the curb was 12 inches, and the drop from a place 8 feet from the curb to the curb was 9 inches.

The plaintiff alleged in her amended complaint that the defendant had been negligent by operating the bus in a careless manner, by bringing the bus to a stop at a place where alighting could result in injury, by bringing the bus to a stop with the right front wheel of the bus more than 18 inches from the curb, by failing to warn the plaintiff of the dangerous condition of snow and ice, and by failing to assist the plaintiff to a point of safety.

At the time of the injury section 276 of chapter 27 of the Municipal Code of the City of Chicago stated as follows:

"(c) The driver of a bus shall enter a bus stop or passenger loading zone on a public street in such a manner that the bus when stopped to load or unload passengers shall be in a position with the right front wheel of such bus not further than eighteen inches from the curb and the bus approximately parallel to the curb so as not to unduly impede the movement of other vehicular traffic."

Chicago Transit Authority Rule 103-A contained a similar provision:

"The operator of a bus shall enter a bus stop zone in such a manner that when standing to load or discharge passengers, the right front wheel shall be not more than eighteen (18) inches from the curb to allow the free movement of other vehicular traffic."

At the close of the plaintiff's evidence the trial court ruled in favor of the defendant and against the plaintiff on defendant's motion for a directed verdict, on the basis that the plaintiff had not met the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494.

There is some confusion in the record in that the court allowed a defense witness to testify out of turn before the plaintiff rested. The plaintiff was waiting for a doctor to testify, and to save time the court allowed Leonard Losoya, 13 years old, to testify for the defense.

By agreement of the attorneys the defendant was allowed to move for a directed verdict on liability after Losoya's testimony. This necessarily precluded the defense testimony from being considered by the court, and we cannot consider it, as it was not part of the plaintiff's case. This was ...


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