APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
E. McAULIFFE, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a jury trial, judgment was entered in favor of plaintiff awarding him $85,000 damages for injuries he sustained after he was assaulted by three fellow passengers on a train operated by defendant Chicago Transit Authority (C.T.A.). Defendant's liability was predicated upon its supposed failure to reasonably anticipate and prevent the assault. On appeal, defendant contends that the verdict is against the manifest weight of the evidence and contrary to law.
At trial the following pertinent facts were adduced.
Fred McCoy on his own behalf
On October 14, 1970, he left work at about 12 or 12:15 a.m. and headed home. Catching a northbound Howard-Englewood el at 43rd Street, he entered the lead car, walked to the rear, and sat down. The motorman and two other passengers were also in this car. As the train left the next stop, Indiana Avenue, he heard talking, name calling, and commotion coming from the car behind him. Sometime after hearing this noise, three men approached him. Two of the men wore Marine uniforms and the third man was dressed in a blue suit. In his opinion, they were drunk. One of the Marines attempted to shake hands with him, but he refused. The man then called him "a bunch of dirty names." One of the other men called him an "Uncle Tom." Then one of them hit him. He tried to defend himself, however, "all at once" they were on top of him. He denies provoking the fight. The last thing he remembers is being on the floor struggling. He did not see the motorman or the conductor do anything.
A police officer arrived, informed him that his leg was broken, and helped him off the train. The men were arrested and he was taken to Mercy Hospital.
On cross-examination he stated he could not actually see the motorman only "the box he was in." The conductor was somewhere behind him in another car, although he never actually saw him either. He also stated that the three men approached him as the train left the 35th Street station.
He was the conductor on the train in question. There were four cars on this train, manned by himself and the motorman. Among other stations, the train stopped at Indiana Avenue, 35th Street and 22nd Street. Thirteen blocks separated the 35th and 22nd Street stations.
He works from a conductor's "station" equipped with a device to open the door and a buzzer to the motorman. Two buzzes means "proceed"; three means "stop"; and four means "stop we have a disturbance." The conductor's "station" contains no equipment which would enable him to speak with anyone; however, the motorman is in radio contact with C.T.A. headquarters which can reach help as needed.
There were few passengers on the train that night. He was alone on the fourth car and only one man was in the third car. At Indiana Avenue three men in their early 20's boarded the train. They were noisy and talking loudly; however, he is not sure what they were saying.
The 35th Street station is to the left of the train. Because the controls for the doors on the left are in the southwest corner of the third car, he headed to that "station" as the train left Indiana Avenue. Walking toward the third car, he noticed that two of the men seemed as though they wanted to find seats, while the third man, who was in the uniform of the Marine Corps walked toward the lone passenger in the third car. As he came into the car, he heard the two men say to the third man, "Leave him alone" and the passenger say, "Don't bother me."
He has no idea what caused the passenger to say this. He did not hear the men say anything to the passenger. Although he did not know how they were bothering the man, he assumed they were. He approached the men and warned them to "cool it" and not to bother the passengers. The men proceeded toward the front of the car and sat down. They were still talking loudly.
Other than this warning, he did not talk with the men, nor did he have occasion to make a ...