Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 26, 1978.
Plaintiff, Fred McCoy, brought suit against the defendant, Chicago Transit Authority (CTA), after he, while riding the CTA's Howard-Englewood elevated train in the city of Chicago, was injured in an assault by a fellow passenger. Following a jury trial, the circuit court of Cook County entered a judgment upon the jury's verdict in favor of the plaintiff. The appellate court reversed the judgment, finding it to be clearly against the manifest weight of the evidence (44 Ill. App.3d 939), and this court granted plaintiff leave to appeal.
Plaintiff testified that on October 14, 1970, he left work at about 12 or 12:15 a.m. He boarded the defendant's northbound train at the 43d Street station and sat in the rear of the first car. The motorman and two other passengers were in this car. As the train left the next stop, 41st Street and Indiana Avenue, plaintiff heard loud talking, name calling, and general commotion emanating from a car behind him. Sometime thereafter, three men entered his car: two were dressed in military uniforms and the third in civilian clothes. In plaintiff's opinion, the men were drunk. After plaintiff refused the attempted handshake of one of the men, the man called plaintiff a "bunch of dirty names" and another called him an "Uncle Tom." Plaintiff told the men to leave him alone. One man hit him. Plaintiff tried to defend himself, and a fight ensued. The last thing plaintiff recalled was being on the floor, struggling. He denied that he provoked the fight, and testified that he did not see either the motorman or the conductor before being struck.
A police officer arrived, informed plaintiff that his leg was broken, and helped plaintiff from the train. The three men were arrested, and plaintiff was taken to Mercy Hospital. On cross-examination, plaintiff testified the three men had approached him as the train left the 35th Street station.
The conductor, Emanuel Rodgers, testified that the train, a northbound "local," made stops at 43d Street, 41st, 35th and 22d streets; that it was composed of four cars, and manned only by the motorman and himself. The conductor performed his duties from a conductor's "station" located in each car. Each station is equipped with a buzzer system by which the conductor can communicate with the motorman: two buzzes signal "proceed," three, "stop," and four, "stop, we have a disturbance." The conductor's station contains no other communication equipment, but the motorman can, by radio, contact CTA headquarters if help is needed. It is the conductor's duty to announce the stops, check for platform markers, and activate the car doors to allow passengers egress and ingress.
There is a discrepancy in the testimony of the parties as to whether the incident which caused plaintiff's injury occurred in the first or second car. For purposes here, we will relate the facts according to the conductor's testimony.
As the train pulled into the 41st Street station, the conductor was in the fourth car. After activating the doors, the conductor noticed three men board the third car. The men were in their early twenties; two were dressed in military uniforms and a third in civilian clothes. The conductor could not recall if any other passengers boarded at that time, but he remembered the three men because they stood only 10 to 12 feet from him and were talking loudly. The train had few passengers on board and none were in the fourth car.
As the train left the 41st Street station, the conductor entered the third car. Upon entering, he noticed one of the three men telling another of that group to leave a passenger alone, and heard the passenger tell the man "Don't bother me." Although the conductor did not know what had caused the trouble, he, nevertheless, went up to a uniformed man and told him to "Cool it," and not bother the passenger. The conductor further testified that he did not have an opportunity to judge the sobriety of the men, and that there was nothing to prevent him from having ordered the three men into the empty fourth car.
The three men went to the front of the third car and momentarily took seats, but, before the train arrived at the 35th Street station, they had, according to the conductor, gotten up and entered the second car. The conductor then activated the doors at the 35th Street station.
Before returning to his station in the fourth car, the conductor, out of curiosity and because he was "somewhat alarmed" by the men's prior behavior, looked to see where the men had gone. Looking into the second car, the conductor saw that one of the uniformed men and a passenger were fighting. The conductor yelled to the men to break it up, but the fight continued. The conductor grabbed the uniformed man by the shoulder but was unable to pull him away from the passenger. By this time, the train was nearing the 22d Street station. When the train stopped, the conductor summoned a police officer, one of whom is on duty at that station 24 hours a day.
The conductor denied that he thought the men appeared troublesome when they boarded. When, however, he was confronted with his prior deposition testimony wherein he was asked, "Is there anything particular that drew your attention to these three people that got on the train at that time," he admitted that he had responded, "apparently they were bent on mischief." He further admitted the above comment was his thought process at that time.
William J. Harper, a Chicago police officer, testified that when the elevated train pulled into the 22d Street station, he was on duty at the street level. The conductor informed him of an altercation on the train and, when Harper entered the train, he found the plaintiff and two of the three men seated. (The third man, who had by that time run from the train, was apprehended by other officers.) Harper, as he attempted to interrogate the men, concluded that they were intoxicated and noted that they showed complete disrespect for his authority. On cross-examination, Harper stated that his conclusion as to the men's intoxication was based upon their reactions and their alcoholic odor.
Timothy O'Mahoney, a CTA security officer, testified that the Englewood line, between the 41st Street and 22d Street stations, is a troublesome area with a high incidence of on-board crime.
Thomas Stiglic, director of instruction for CTA conductors, testified on behalf of the defendant that he knew of nothing that could be done to prevent a person from riding the CTA's equipment. On cross-examination, however, the witness stated he would commend a conductor who prevented a person ...