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Turner v. Chicago Transit Authority

OPINION FILED MARCH 9, 1984.

ELIJAH TURNER, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. John J. Moran, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff brought suit to recover damages for personal injuries suffered as a result of the alleged negligence of defendant Bolton, a bus driver employed by defendant Chicago Transit Authority (CTA), in the operation of a CTA bus. Following a trial by jury, judgment was entered against defendants with total damages assessed at $212,500, subsequently reduced to recoverable damages of $132,812.50 as a result of a finding that plaintiff was 37.5% contributorily negligent. On appeal, defendants allege that: (1) the jury's verdict was against the manifest weight of the evidence; (2) the trial court erred when it admitted evidence of a prior consistent statement to rehabilitate the plaintiff; and (3) the jury's award for lost income and lost earning capacity was erroneously premised on speculation and inadmissible evidence. For the reasons that follow, we affirm in part and reverse in part.

On May 13, 1977, approximately 5:30 a.m., a CTA bus driven by defendant Bolton collided with plaintiff within a few feet of the intersection of Lotus and Chicago Avenue in Chicago. The impact of the collision threw plaintiff to the ground between the curb and the bus, and the right rear wheel of the CTA bus ran over his left arm.

In his testimony as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102), defendant Bolton stated that at the time of the collision, he was driving the bus at a speed between two to three miles per hour, traveling in an easterly direction in the right-hand parking lane of Chicago Avenue, approximately four feet from the curb. When he heard the sound of an impact on the right side of the bus to the rear of the rear door, he immediately stopped the bus to investigate the situation. Defendant admitted that he had seen plaintiff prior to the collision and could have stopped, but denied that plaintiff had been trying to flag the bus.

When questioned by defense counsel, defendant stated that when he first observed plaintiff, plaintiff was walking down the middle of the sidewalk in an "unusual manner, staggering up upon his toes," heading west on Chicago Avenue. Upon observing plaintiff, defendant put his foot on the brake, tooted his horn, and moved away from the curb as much as possible. A passing truck prohibited him from actually pulling into the left lane. Plaintiff did not respond to the horn and defendant continued to drive past him, momentarily glancing in his right-hand rear view mirror. No part of the front of the bus ever came into contact with plaintiff, the wheels of the bus never went onto the curb, and the bus driver never turned the bus toward the right-hand curb or made any other sudden or jerky turns. The speed limit on Chicago Avenue is 30 miles per hour. There was no bus stop at the corner of Lotus and Chicago Avenue.

Next, plaintiff testified that on the morning of May 13, 1977, he left his mother's house and was walking west on Chicago Avenue, looking for a bus to take him east. He spotted defendant's bus approximately 1 1/2 blocks away and started to jog to the nearest corner at Lotus and Chicago Avenue, unaware that this corner was not a designated bus stop. The bus was traveling between 5 to 15 miles per hour and maintained a distance of about two feet from the curb. Plaintiff stood on the curb and waved his hand in an attempt to flag down the bus. He did not hear the bus driver sound his horn. Plaintiff continued to wave at the bus as it approached the corner, but the bus did not slow down or stop. Although plaintiff could see the bus driver, the driver did not indicate that he had seen plaintiff. When plaintiff came in contact with the bus between the front and rear doors, the impact threw him onto the pavement and the rear wheel of the bus ran over his arm.

On the morning of the accident, plaintiff, unemployed, was on his way to find employment. At the time, he had no offers of employment. Prior to being laid off from his most recent job, plaintiff had worked as a die setter for which he had earned approximately $17,000 per year. As a result of his injury, plaintiff's left arm is permanently disabled, rendering him physically unable to do his former type of work. Instead, plaintiff is limited to performing less physically-demanding work for which he is paid a lower salary. Plaintiff estimated his yearly earnings in 1978 to have been approximately $12,000. At the time of the trial in 1982, plaintiff was again unemployed. Since the accident, he has had difficulty keeping a job because he cannot do any heavy lifting.

During cross-examination, when plaintiff stated that he might have had a couple of beers about 12:30 a.m. on the morning of the accident, defense counsel impeached his testimony with a prior inconsistent statement taken from plaintiff's deposition wherein he had stated that he had been working on his friend's car the night before the accident until about 1 a.m., after which they had a few beers around 2:30 or 3 a.m. Plaintiff admitted that he had not looked around for a designated bus stop on the morning of the accident. Rather, he intended to flag down a bus when he saw one. Plaintiff never stepped off the curb, and had no idea how far his arm was extended into the street while he was waving. No portion of the front of the bus hit his extended arm. Plaintiff further indicated that he was unsure as to whether his waving arm hit the bus or the bus hit his arm. However, he was certain that the wheels of the bus never went over or up onto the curb, and that the bus never jerked left or right, but maintained a two-foot distance from the curb. Plaintiff denied telling anyone that the accident occurred when he spun off the curb, stating that he did not fall off the curb until after the bus hit him. At this point, defense counsel again impeached plaintiff from a deposition statement wherein plaintiff explained that he "got in a spin hitting on the side of [the bus]." Plaintiff also denied telling his treating doctor that he had slipped and fallen under a bus.

Thereafter, during redirect, when plaintiff's counsel attempted to rehabilitate plaintiff from the same deposition used to impeach his testimony regarding the time at which he had had a few beers on the morning of the accident, defense counsel asked for a sidebar during which he argued that there is no authority that allows a party to be rehabilitated by a past consistent statement. Relying on Supreme Court Rule 212(c) (87 Ill.2d R. 212(c)) (Rule 212(c)), the court allowed plaintiff's counsel to rehabilitate by reading an omitted part of the deposition that was used to impeach. As a result, the following excerpt from the deposition was read in front of the jury:

"Q. When did you have beers, at what time?

A. I guess it must have been about 12:30, I guess."

Dr. William Newman, orthopedic surgeon at St. Anne's Hospital where plaintiff was treated, testified that he first examined plaintiff on May 13, 1977, at which time plaintiff told him that while trying to catch a bus, he had slipped and fallen under the bus which then ran over his arm. Although Newman did not notice any particular symptoms of plaintiff's intoxication, another doctor had noted on plaintiff's medical record that plaintiff had had a hangover at the time.

After stipulating that pursuant to a recognized mortality table, plaintiff, age 41, would live another 29.2 years, plaintiff rested his case. Thereafter, the trial court denied defendant's motion for a directed verdict, stating, inter alia, that the evidence presented a factual situation for the jury. Further, "[t]he bus * * * came within two feet of the curb, which * * * [c]ould be considered negligence and which raises a question whether the driver was keeping a proper lookout."

Next, Glen Ward testified on behalf of defendants that he had observed the accident while sitting in the second seat directly behind the rear door of the bus. From this vantage point, he saw plaintiff waving his arm and running toward the curb "like he had just woken up or like had been drinking something." In Ward's opinion, plaintiff could have been under the influence of alcohol at the time. Plaintiff then slipped just as the bus was passing him, coming into contact with the bus right behind the rear door. Ward did not hear any noise from the impact, but noticed that the bus stopped immediately. Ward stated that the bus did not run into plaintiff. Rather, plaintiff ran into the bus.

On cross-examination, Ward admitted that he did not actually see plaintiff's feet slip off the curb. He also did not hear a horn. At the time of the accident, the bus was between three to six feet from the curb. Ward could see the curb from where he was sitting.

Dr. Jolanda Peckus, emergency medicine specialist at St. Anne's Hospital, then testified that she treated plaintiff in the emergency room on the morning of May 13, 1977. The treatment included a blood alcohol test which indicated that plaintiff had an alcohol level of 280 milligrams. The normal level is 0 and a level around 100 is considered significant. Further, plaintiff told Peckus that he had consumed two to three six-packs of beer and had fallen toward a bus, injuring his arm.

Plaintiff then took the stand again and testified that on the evening before the accident, he was at home and had gone to bed approximately 1 a.m. At this point, defense counsel impeached plaintiff's testimony with statements taken from his earlier deposition indicating that he had been working on his friend's car until approximately 1 a.m. When plaintiff denied drinking any alcoholic beverage between midnight ...


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