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Wilson v. Chicago Transit Authority

OPINION FILED SEPTEMBER 29, 1983.

DOLORES G. WILSON, PLAINTIFF-APPELLANT,

v.

THE CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Gerald L. Sbarbaro, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Dolores G. Wilson, brought a complaint against defendants to recover damages for personal injuries sustained in an accident with a Chicago Transit Authority (CTA) bus. At the close of the jury trial, she was awarded $12,500. On appeal, plaintiff raises the following issues for review: (1) whether the trial court erred in directing a verdict in favor in the CTA and its agent, Georgia Harris; (2) whether the trial court erred in limiting the testimony of her medical expert; and (3) whether the trial court erred in refusing two of her jury instructions.

We affirm.

At trial, Richard Kowitz, a Chicago policeman, testified that he investigated the accident which occurred on June 28, 1981, involving plaintiff and a CTA bus. The accident occurred at 2:12 p.m. He arrived at the scene within three minutes. More than one policeman was directing traffic at the intersection of Clark and Addison streets in Chicago, Illinois, but Kowitz did not know the exact number. The victim was lying between the bus and the center of Clark Street. She was 25 to 30 feet north of the crosswalk at the left side and near the rear wheel of the bus.

Officer Kowitz took witness statements from Georgia Harris, Robert Thomas and Officer Galioto. When Kowitz asked Harris, the bus operator, how fast she was driving, she replied five to seven miles per hour, but on page two of her statement she said the bus was stopped. Thomas said that he was on the northeast corner of Clark and Addison when he saw a woman run across the street into the side of the bus.

Plaintiff called Robert Thomas, a CTA bus driver, as an adverse witness. Thomas testified that he was standing on the northwest corner of Clark and Addison for about a minute and a half before he observed the accident. A policeman was directing pedestrians, another was directing buses and a third was in the middle of the intersection. The policeman directing pedestrians was watching the policeman in the intersection and not the one directing buses. A CTA bus traveling north on Clark Street, stopped at Addison and then continued when a policeman directed it through the intersection. When the bus was 15 to 20 feet through the intersection, a man ran in front of the bus which stopped. Thomas was 15 to 16 feet north of the crosswalk. Plaintiff walked at a rapid pace from the northwest corner of Clark and Addison into the bus which had stopped for 15 to 40 seconds. Plaintiff had been looking over her shoulder and apparently talking to a policeman as she walked. After the collision, she fell to the ground, hitting her head. She lay about 10 to 15 feet north of the crosswalk. Thomas did not hear a bus horn before the accident.

Donald Deep, a CTA supervisor, was also called as an adverse witness. Deep testified that he was standing on the southwest corner of Clark and Addison when Thomas told him about the accident. Thomas had been standing on that corner for about 15 minutes before he mentioned the accident. Deep observed the accident scene. Plaintiff was about 10 feet north of the crosswalk and the bus was 15 to 20 feet north of her. The bus driver told Deep that the bus was moving slowly at the time of the accident, but she did not mention that a man had run in front of the bus.

Plaintiff testified that she lived near the scene of the accident. On June 28, 1981, she left her house and walked east. When she arrived at the intersection of Clark and Addison, a policeman indicated that she stop. Then he indicated that she could cross the street. The next thing plaintiff remembered was being in a hospital emergency room. Plaintiff suffered injuries to her head, shoulder, chest, arm, hand and hip. She was hospitalized for nine days and had facial surgery. After the accident she suffered from headaches, double vision, numbness in her face and memory lapses. She could not care for her invalid husband and their two children, who had medical conditions, as well as she did before the accident.

Don Miller, a physician and surgeon, was qualified as a medical expert. He examined plaintiff and her hospital records. Plaintiff complained of pain, numbness, dizziness, forgetfulness and inattention. In Dr. Miller's opinion, plaintiff's complaints could have been caused by her contact with the bus. Damage to her nerves was permanent. The trial court refused to allow plaintiff's counsel to ask Dr. Miller if it was more likely that plaintiff walked or ran into the side of the bus, or more likely the moving bus struck her. The trial court reasoned that Miller was not qualified as an "accidentologist," that is, a person who reconstructs accidents.

William Galioto, a Chicago policeman, was called by plaintiff as an adverse witness. He was on duty on June 28, 1981, at the accident scene. He was standing in the intersection of the northwest corner of Clark and Addison in the center of the crosswalk. Two other policemen were also directing traffic. When he first observed plaintiff, she was eight to 12 feet north of him and six to eight feet from the intersection. Galioto did not observe her talking to anyone and he never heard a bus horn or saw anyone in front of the bus. He did not see plaintiff impact with the bus, but he saw her fall backward while the bus was moving at five to 10 miles per hour. Then the bus stopped. Plaintiff fell six to eight feet behind the front wheel well of the bus, about 30 feet north of the crosswalk.

Georgia Harris, the CTA bus driver, was called by plaintiff as an adverse witness. After driving across the intersection of Clark and Addison, she stopped when a man ran in front of the bus. At that time, the bus was 48 to 52 feet from the intersection, and the rear of the bus was eight to 12 feet north of the crosswalk. Harris checked her mirror and looked around. When she was about to proceed, she heard a thump. She saw a woman lying on the ground toward the rear of the bus.

Joseph Bongiorno, a psychiatrist, examined plaintiff. He stated that plaintiff suffered from retrograde amnesia, that is, memory loss for events immediately preceding the trauma. In his opinion, plaintiff's depression and traumatic neuroses were caused by the accident.

Deana Nannix, the owner of a private nursing service, estimated the cost of providing nursing care to plaintiff's family.

Plaintiff rested and defendants moved for directed verdicts. The trial court sustained the motion for the CTA and its agent Harris; it denied the motion with respect to the city of Chicago and Galioto. Then the defense rested. The jury found that plaintiff suffered damages of $250,000 but reduced the award ...


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