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Strope v. Chicago Transit Authority

OPINION FILED MAY 2, 1979.

WALLACE STROPE, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. McAULIFFE, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action alleging that he suffered personal injuries because of the negligence of defendant. A jury returned a verdict for plaintiff in the amount of $400,000. The trial court entered judgment on the verdict and denied defendant's motion for a new trial or for judgment notwithstanding the verdict. Defendant contends on appeal that several errors committed during trial mandate a remandment for a new trial.

Plaintiff was injured on the evening of July 14, 1972. His complaint, filed December 5, 1972, alleged that as he was walking at or near the intersection of California and North avenues in Chicago, he was struck by a bus owned and operated by defendant. The case was originally tried in 1976, resulting in a mistrial when the jury was unable to agree. The present trial began in January 1977.

Plaintiff testified that on the evening in question he went to a park at about 9:30 p.m. and remained there until midnight. When he departed, he was on the southwest corner of North and California avenues. He proceeded across California Avenue to the southeast corner with the green light. He then proceeded to cross North Avenue to the northeast corner. He was in the crosswalk and had the green light. He saw no traffic to the west; to the east he saw a westbound bus a little over a block away. When he reached the middle of North Avenue, plaintiff noticed the light changed to amber. The bus was 50 or 60 feet from him in the middle westbound lane so plaintiff hurried to the curb. Plaintiff reached the curb lane and was within five feet of the curb when the bus swerved into the curb lane and struck him. Plaintiff further testified that the right front of the bus struck him and that he thought, but was not positive, that the rear wheels ran over his legs. Plaintiff had stated positively at his deposition that the rear wheels ran over his legs. Plaintiff noticed no one else in the vicinity.

Immediately after the accident, plaintiff testified he was lying in the street about five feet from the curb in the crosswalk. Plaintiff admitted that during the first trial he had placed marks on a photograph representing where he was lying after the accident. Those marks were approximately 20 feet east of the intersection. Plaintiff stated, however, he had been mistaken, and he marked another photograph placing himself about two feet east of the crosswalk. Plaintiff stated that the bus proceeded through the light and stopped on the west side of the street. The bus driver climbed down the steps and looked back toward where plaintiff was lying. Plaintiff then lost consciousness and awakened in a hospital. He noticed his wife in the hospital room.

Aurelio Gonzalez testified over defendant's objection. On July 14, 1972, at about midnight, he left a restaurant on North Avenue west of California Avenue. As he walked, he observed a man crossing North Avenue northbound in the east crosswalk. The man had the green light. Gonzalez saw a westbound bus strike the man in the crosswalk. The bus had just pulled into the curb lane. Gonzalez shouted to the bus which had proceeded through the red light. The bus stopped for approximately five to seven seconds. Plaintiff was lying in the crosswalk and he asked the witness to call his wife. Gonzalez and an unidentified man propped plaintiff up against a "paperstand." When Gonzalez left him, plaintiff was unconscious.

Gonzalez went back to the restaurant to call the number plaintiff had given him. He gave the woman who answered the telephone his nickname, "Ramos," and his address as 2659 West North Avenue. When Gonzalez returned, he noticed an ambulance had arrived and he went home. He first received notice of the trial in late December 1976 or in early January 1977, when he was located in New Jersey.

Norman Konieski, a Chicago fireman, testified for plaintiff that on the evening in question he and his partner, John D. Stensland, responded to a call concerning an injured person. Arriving in an ambulance, they found plaintiff propped up against a news vending machine east of the intersection. Other than the fact that plaintiff appeared to be in pain and incoherent, Konieski noticed nothing about him. Konieski and his partner transferred plaintiff by ambulance to Walther Memorial Hospital.

Elica Villanueva, a nurse, testified for plaintiff that she was employed in the emergency room at Walther on the evening in question. She had no independent recollection of seeing plaintiff, and looking at the emergency room record pertaining to plaintiff did not refresh her recollection. The report was in her handwriting and she made the entries. She testified that the contents of the report were true and correct when they were recorded. Over defendant's objection, she testified that if there were any unusual observations concerning the patient, they would have been recorded. Nothing out of the ordinary pertaining to plaintiff was contained in the record. As a rebuttal witness for plaintiff, she testified that if plaintiff had been intoxicated or if there had been a strong odor of alcohol, it would have been noted in the report.

Donald Skowronek, a bus driver employed by defendant, testified for defendant. He also testified as an adverse witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 60.) On the evening of July 13, 1972, he was driving a bus on North Avenue. He first became aware someone was claiming an accident when a passenger from a taxi boarded a bus to so inform him. Skowronek immediately called his supervisor.

As Skowronek recalled, he was proceeding west on North Avenue in the curb lane. When he reached California Avenue he stopped to pick up passengers. The bus proceeded when the light turned green. After he had passed the intersection, a passenger on the bus yelled and Skowronek stopped the bus, assuming that someone wanted to board. When no one did, he continued on his route. Skowronek testified that he did not observe anyone in the street at North and California and that his bus did not strike anyone.

Officer John D. Stensland, Konieski's partner, testified for defendant that when they arrived, they found plaintiff several feet east of the news vending machine lying flat on his back. While examining plaintiff, Stensland noticed a strong odor of alcohol; he believed plaintiff was intoxicated. Stensland wrote in the ambulance report that plaintiff had been drinking, but did not state that he was intoxicated. Sympathy for plaintiff caused Stensland to omit the fact that he thought plaintiff was drunk. During Konieski's absence, Stensland had a conversation with plaintiff who stated he intended to get even with his family for throwing him out. Plaintiff said that, as he sat at the curb, he placed his feet under the wheels of the bus. Plaintiff's family refused to come to the hospital when Stensland went to pick them up.

Over defendant's objection, Mary Strope, plaintiff's wife, testified for plaintiff as a rebuttal witness that on the morning in question two firemen came to her home and took her to the hospital. She did not notice whether her husband was intoxicated. Plaintiff was not living with her at the time of the accident and she had no knowledge of his whereabouts on the evening of the accident.

Defendant contends that the trial court erred in allowing the testimony of certain witnesses for plaintiff. Under this heading, it argues that the court should not have permitted Aurelio Gonzalez to testify. It points out that Gonzalez' name was not listed in response to defendant's interrogatories and that the trial court should have barred his testimony.

Plaintiff's answer to defendant's interrogatory seeking names and addresses of persons who witnessed the occurrence listed "Mr. Walter Ramos, 2659 West North Avenue." Plaintiff's witness did not testify in the first trial which occurred in November 1976, and the witness was not located in New Jersey until late December 1976 at the earliest. Defendant did not serve supplemental interrogatories or requests for production subsequent to the first trial. On January 27, 1977, plaintiff's counsel informed the court that Ramos had been located and defense counsel was allowed to depose the witness on January 31, the date plaintiff's counsel represented the witness first would be available.

In his deposition, the witness testified that his real name is Aurelio Gonzalez, but that he also goes by the nickname, "Ramos." He stated that he arrived in Chicago from New Jersey on January 15, 1977. In July 1972, he resided at the North Avenue address and had lived there periodically ever since. When he dialed the telephone number given him by plaintiff, he spoke to a woman. He did not know whether it was Mrs. Strope. The woman could not understand him when he gave her his real name, so he gave his address and told her to ask for Ramos.

• 1, 2 We believe that the trial court correctly permitted Gonzalez to testify. There is no evidence that plaintiff was aware that the name of the eyewitness listed in the answer to defendant's interrogatory was, in fact, Gonzalez. Gonzalez stated that he gave his name as Ramos to the woman who answered the telephone and that he spoke to no one else concerning the accident until he was located in New Jersey. Based upon the record, plaintiff is not guilty, as defendant contends, of withholding the name of a witness from discovery. Under Supreme Court Rule 213(c), plaintiff was under no duty to supplement answers to interrogatories which were answered in good faith and were complete when made. (Quatrano v. Marrocco (1965), 61 Ill. App.2d 1, 208 ...


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