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Perry v. Chicago & North Western Transp.





APPEAL from the Circuit Court of Cook County; the Hon. ARCHIBALD J. CAREY, Judge, presiding.


Rehearing denied November 18, 1977.

This is an action brought by a pedestrian, Alice Perry, seeking recovery for personal injuries sustained when she was struck by an automobile. Plaintiff sued both the driver of the automobile, William McKinney, and the Chicago and North Western Transportation Company (hereinafter referred to as Chicago and North Western) for its alleged negligence arising from the construction and maintenance of a passenger terminal building at the scene of the occurrence. The case went to trial and, as the jury was concluding its deliberations, plaintiff settled with the defendant McKinney. The jury rendered a verdict for both defendants, and in answer to a special interrogatory, found that the plaintiff was free from contributory negligence. The trial court entered judgment on this verdict, and after her post-trial motion was ordered denied, plaintiff appealed.

On appeal plaintiff makes the following contentions: (1) that the trial court erred in ruling that certain ordinances could be received into evidence; (2) that all the evidence when viewed in its aspect most favorable to the defendant Chicago and North Western so overwhelmingly favors the plaintiff, that judgment should be entered in favor of the plaintiff and that the cause should be remanded for a consideration of the issue of damages only; and (3) that the trial court erred in failing to give the jury certain instructions tendered by the plaintiff.

We affirm.

The evidence presented at trial indicated that there exists a passenger terminal building designed, erected, owned and maintained by the defendant Chicago and North Western. This passenger terminal building, located at Canal and Washington streets in Chicago, is a two-story structure which extends from the northwest to the southwest corners of the intersection and west above Washington street. At the eastern face of the terminal above Washington street there are four pillars 4 feet 8 1/2 inches on each side which support the structure and form two tunnels for traffic to pass in an eastern direction on Washington street. Between the tunnel exits on the eastern side and extending between the two middle pillars is a parapet wall approximately 33 feet in length and 3 feet 9 1/2 inches high. Between the two vehicle tunnels and to the west of the parapet wall is a streetcar tunnel incline which has not been in operation since the early 1950's. The parapet wall serves as a barricade to protect pedestrians from tumbling into the streetcar tunnel 30 feet below. There are also parapet walls extending west from the middle pillars on the eastern face which serve the same purpose for vehicles passing through the structure on Washington street. These walls are 4 feet, 1 inch in height and 4 feet, 2 inches thick. The construction and placement of the passenger terminal, supporting structures and the parapet walls were described, outlined and authorized by an ordinance of the City of Chicago in 1906 and by ordinance of the West Chicago Park Commission in 1907 and 1909. The parapet wall and sidewalks to the tunnel approach were specifically provided for in the ordinance of 1909. Construction of the above structures was completed in 1912. In 1915, the Chicago and North Western, in a document entitled "Recommendation for Construction," noted that "this is a very dangerous place and the wall over the tunnel across Washington street at Canal street now obscures vision entirely to the west and a person moving south on Canal street across Washington street is unable to see anything coming from the west until he is south of the wall and right in the path of the vehicle." As a result of the above document, 18 inches were removed from the top of the parapet wall and an iron railing was installed atop thereof.

At trial, the plaintiff testified that she had crossed from the northwest to the southwest corner of Canal and Washington streets on five previous occasions; that the light was green when she started to cross on the instant occasion; and that she was walking south across Washington street, within the crosswalk at a distance of two to four steps from the south center pillar of the passenger terminal when she was struck by the defendant, Mr. McKinney's automobile. Mrs. Perry also testified that she did not remember looking to the southwest over to the parapet wall as she passed by it nor did she remember looking west down Washington street when she came to the end of the parapet wall. Mrs. Perry further stated at trial that at the time of impact she did not know the color of the crossing light.

The defendant driver, William McKinney, testified that he was travelling east in the left hand lane of the south tunnel under the passenger terminal. The light at Canal and Washington changed to red and he came to a gradual stop six to eight feet behind and to the west of the south center pillar. His view to his left was obstructed because the parapet wall between the two middle pillars was higher than his eyes. Mr. McKinney testified that he was familiar with this intersection and knew there existed a blind spot there for both drivers and pedestrians. When the light changed to green, Mr. McKinney accelerated and a figure came from behind the pillar and into the path of his automobile. He applied his brakes but struck the pedestrian who fell in front of his automobile.

Mr. Roosevelt Canady testified that he was a passenger in the car driven by Mr. McKinney. He stated that when the light changed to green McKinney accelerated and the next thing he knew, a figure darted from behind the pillar and there was an impact. At the time of impact the front fourth of the car had exited the tunnel and impact occurred at the left side of the front fender.

From the exhibits and testimony at trial, it was established that "Look Out For Vehicles" signs were painted on each of the middle pillars. Mr. Christensen, the railroad's bridge engineer, testified that the sign which can be seen looking to the north is readable, but that the sign which can be seen looking to the south is "not easily distinguishable." Mr. Christensen testified that he never made any inquiry as to who placed the "Look Out For Vehicles" signs, but stated that the Chicago and North Western does not place that type of sign.

Mr. Robert Lawton, the Chicago and North Western engineer, testified that he searched the company records in an effort to ascertain who installed or maintained the above warning signs, but found nothing in the records.

Mr. Gordon, a traffic engineer for the City of Chicago, testified that the city had no record of the installation of those signs. Mr. Gordon further testified that prior to the occurrence, traffic lights had been installed at the intersection. Mr. Gordon also explained that "Walk/Don't Walk" signals were installed at the intersection but that these signals were installed subsequent to the occurrence.

• 1 Plaintiff first objects to the admission into evidence of the ordinances of the City of Chicago and the West Chicago Park Commission which authorized the construction of the Chicago and North Western passenger terminal building and supporting structures. We note initially that defense counsel and not the trial court, read the ordinances into evidence. Generally, it is the duty of the court to instruct the jury as to the law and counsel should not be permitted to read ordinances to the jury. (Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 325 N.E.2d 607; McGinnis v. Cosmopolitan National Bank & Trust Co. (1969), 114 Ill. App.2d 113, 252 N.E.2d 56.) In the instant case, however, the record reflects that plaintiff's counsel, although preserving his specific objection to the ordinances being admitted into evidence, did stipulate concerning the manner in which they would be received into evidence. The record reflects that the trial court, citing the small print and length of the ordinances and the condition of the paper due to its age, stated that he would prefer that counsel for one of the parties read the ordinances to the jury because he had trouble reading them. Plaintiff's counsel, although noting his objection to the admission into evidence of the ordinances regardless of who read them, stated that if the trial court was going to permit the ordinances to be received into evidence, he did not object to defense counsel's reading them. As such, plaintiff has waived the right to object to the manner in which the ordinances were received into evidence. Martin v. McIntosh (1976), 37 Ill. App.3d 526, 346 N.E.2d 450.

• 2 The larger question of whether or not the trial court erred in receiving the ordinances into evidence is a question we will not consider in this appeal. Defendant moved in this court to strike that section of plaintiff's reply brief which argues the propriety of the trial court's ruling which received the ordinances into evidence. We note that this particular contention of error was first raised in plaintiff's reply brief. Plaintiff's post-trial motion and initial brief raise the issue of only the manner in which the ordinances were received into evidence, a question we have previously considered. In neither her post-trial motion or initial brief did plaintiff raise the specific issue of the propriety of the trial court's ruling receiving the ordinances into evidence. The Civil Practice Act provides that a "post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof * * *." (Ill. Rev. Stat. 1975, ch. 110, par. 68.1(2).) If a party fails to meet this standard of specificity the alleged error is waived on appeal. (Keene v. City of Chicago (1974), 17 Ill. App.3d 464, 308 N.E.2d 244; Manns v. Stein (1968), 99 Ill. App.2d 398, 241 N.E.2d 691.) Furthermore, Supreme Court Rule 341 provides that points not argued in appellant's initial brief are waived and may not be raised in the reply brief or oral argument. (Ill. Rev. ...

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