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Latendresse v. Marra

OPINION FILED MAY 12, 1977.

ALBERT J. LATENDRESSE, A/K/A AL RYAN, PLAINTIFF-APPELLANT,

v.

DANIEL MARRA ET AL., DEFENDANTS. — (CHECKER TAXI CO., INC., DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Albert J. Latendresse, a passenger in the cab of the co-defendant, Checker Taxi Co. Inc., sued for personal injuries sustained in a collision between the cab and an automobile. The trial was held before the court without a jury. Upon the conclusion of the plaintiff's case, the court entered a finding in favor of co-defendant, Checker Taxi, from which plaintiff now appeals.

The issues for review are (1) whether the trial court properly weighed the evidence and (2) whether the finding in favor of the defendant was against the manifest weight of the evidence.

We affirm the trial court.

On December 27, 1970, the plaintiff was a passenger in a Checker Taxi cab driven by Elias Chronopoulos, when it was struck by a 1966 Cadillac, driven by Daniel Marra. The plaintiff brought suit against Checker, Elias Chronopoulos, Daniel Marra, and Judy Barber, a passenger in the car driven by Marra, who is alleged to be a joint venturer with Marra.

In count 4 of the complaint, the plaintiff alleged, inter alia, that Chronopoulos and Checker were guilty of one or more of the following negligent acts or omissions: failure to take any evasive action to avoid collision; failure to maintain a proper lookout; failure to have seat belts in view of the passenger; operating a vehicle at an excessive rate of speed; failure to apply the braking mechanism of the vehicle when he knew or should have known a collision would ensue; and negligence in the maintenance, operation, management and control of their vehicle.

At trial, on June 19, 1975, the court found that Judy Barber was in default for failing to file an appearance or answer and further ordered that the defendants Chronopoulos and Marra be dismissed due to plaintiff's failure to exercise diligence in obtaining service of summons upon them. The trial proceeded against Checker.

Plaintiff testified that at about 6:40 p.m. on December 27, 1970, he and his wife left their home at the corner of Dickens and Clark in the City of Chicago and got in a Checker cab driven by Chronopoulos. The weather was cool and clear. The plaintiff noted that the cab shook when it stopped. He also stated that the cab jiggled. The plaintiff testified the driver looked foreign, and he could not always understand the driver and did not think that the driver could understand him.

Plaintiff's wife got out at 2600 North Clark, but plaintiff wanted to continue to Alcock's Inn at 946 Diversey, his place of employment where he played the piano and entertained. Plaintiff instructed the driver to turn west on Wrightwood and go to Halsted before turning north. The driver proceeded west on Wrightwood, but turned north on Orchard Street and then continued to go north on Orchard, a through street.

The plaintiff cautioned the driver to watch out for children when they went by a schoolyard. The plaintiff estimated the cab was going between 25 and 30 miles per hour at that time. When the driver slowed down to cross Schubert, he was going 20 or 25 miles per hour.

Just before they reached the intersection of Orchard and Schubert, the plaintiff saw a car approaching from the east on Schubert. He noticed the car because it had its lights on and it was a big car. Orchard being a through street did not have a stop sign controlling the flow of traffic but there was a stop sign for the westbound traffic on Schubert at its intersection with Orchard. The plaintiff saw the car when it was 50 or 60 feet away from the intersection and he estimated it was going 45 or 50 miles per hour. He knew it was going too fast to stop at the stop sign at the intersection. He told the driver, "Watch that car" and observed that the driver was looking west, in the other direction. Plaintiff stated, "I guess he tried to get out of the way, I don't know."

When he warned the driver, he estimated the speed of the cab at 10 or 15 miles per hour. He could not recall whether the driver applied the brakes, but he knew they were not going fast enough to get out of the other car's way. After the collision he lost consciousness.

The plaintiff testified he spent two months in the hospital, and was not able to play the piano like he had before the accident. He would get numb ...


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