Appeal from the Circuit Court of Cook County; the Hon. James
A. Geroulis, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiff Eleanor Smith filed suit against Chicago Limousine Service, Inc., and its driver, Ned Cassolo, for personal injuries suffered when she fell upon entering the defendants' limousine on December 23, 1976. Following a jury trial, the jury rendered a verdict in favor of the defendant Cassolo, and against the defendant Chicago Limousine Service, Inc., in the sum of $60,000, from which judgment Chicago Limousine Service, Inc., appeals. Plaintiff cross-appeals from the judgment in this case in favor of Cassolo, and requests judgment notwithstanding the verdict, or in the alternative, moves for a new trial as to Cassolo only.
The issues on appeal are:
(1) whether a verdict against an employer based upon its independent acts of negligence is legally inconsistent with a verdict in favor of a named employee;
(2) whether the jury was improperly instructed;
(3) whether the trial court erred in denying the defendant's post-trial motion; and
(4) whether the verdict in favor of the defendant Cassolo was against the manifest weight of the evidence.
Plaintiff testified that she resided with her husband in Massachusetts and was 73 years old in 1976. She had undergone two hip operations, including a total hip replacement in 1974, and consequently walked with a limp due to a slight shortening of her left leg. Although she was able to walk with a cane, she had difficulty in climbing stairs or in entering vehicles. Her ordinary method of entering a vehicle was to "back" towards the car by positioning herself on the car seat with her legs placed outside the vehicle, whereupon she would lift and pivot her legs into the car.
She further testified that her daughter, Dr. Ellen Vandermeulen, and son-in-law, had made arrangements with Chicago Limousine Service, Inc., for a limousine to pick herself and her husband up at O'Hare airport in Chicago, Illinois, upon their arrival in Chicago for a Christmas visit.
When plaintiff and her husband arrived at O'Hare airport on December 23, 1976, they eventually met the driver, Ned Cassolo, on the lower level of the terminal outside of the concourse area, whereupon he led them to the parked limousine and opened the rear door of the limousine for the plaintiff.
During direct examination, she was questioned as to her actions after the chauffeur opened the door. She stated, "I thought that was a signal for me to get in. So I saw him go leave around, and I thought he was right there with me * * *," at which point her attorney interrupted her to ask the location of her husband at that time. She responded that he had left with the luggage. When asked again what the chauffeur did after he opened the door, she stated that she thought that he was right with her.
However, when questioned later concerning her actions after the rear door was opened, on cross-examination, the following exchange took place:
"Q. At this point, the rear door was open?
Q. Then the chauffeur went to the rear, is ...