Appeal from the Circuit Court of Cook County; the Hon. Charles
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, Fannie Thompson, sued defendants, the city of Chicago and Thomas Daley, for injuries she sustained when struck by an unmarked Chicago police car driven by Daley. The jury returned a verdict in her favor in the amount of $62,510. Defendants raise the following issues for review: (1) whether the trial court erred in directing a finding that Officer Daley was not executing or enforcing a law at the time of the accident and erred in failing to direct a finding that Daley was executing or enforcing a law at the time of the accident, and (2) whether the trial court committed prejudical errors regarding the jury which denied defendants a fair trial.
At trial, plaintiff, 60 years of age and a diabetic, testified that on the evening of November 30, 1979, she intended to go to a leather coat sale at the International Amphitheatre in Chicago, with her three daughters and one of her grandchildren. They traveled to the Amphitheatre by taxicab and exited the cab between 42nd and 43rd streets and Halsted Street. They crossed the street, and while walking through the parking lot they noticed 50 to 65 teenagers running. Plaintiff and her relatives started walking back toward Halsted Street. She did not hear any shots, sirens, screams or any other noises. Plaintiff instructed one of her daughters to pick up the grandchild, and the next thing she remembered was a car hitting her in the back from the rear. She never saw the car approach. She was under the car up to her shoulders. She felt pain in her head, shoulder, back, legs, arms and abdomen. At the time of the accident, plaintiff weighed 250 pounds.
Plaintiff was taken to Michael Reese Hospital. On the next day, her spleen was removed. She remained in the hospital for two weeks, but returned a week later. Plaintiff described the treatment she received in the hospital. She stated that since the accident she cannot stand for long periods of time, and she cannot do her own housework as she once did.
Thomas J. Daley, a Chicago police officer, was called as an adverse witness. On the evening of November 30, 1979, he was assigned with his partner, Ralph White, to patrol the International Amphitheatre, where a rock concert was scheduled. Daley and White were in uniform and in an unmarked police car which was equipped with a siren and flashing headlights. When Daley drove into the parking lot between 8 and 8:30 p.m., he observed a disturbance near a gate in the north wall of the building. Daley saw about 100 youths and two ushers by a door. He thought the ushers were in danger. Daley drove forward, then stopped the car and radioed for assistance. Daley activated a siren which sounded for 60 seconds while the car moved forward. After people began running, the car was hit with bottles, wood and bricks, although Daley did not see bottles or bricks hitting the car. He observed another unmarked police car approach the scene. He did not activate the flashing headlights. It was Daley's intention to back out of the range of the thrown objects. He backed up 30 to 40 feet at about 10 miles per hour. Neither the front nor the back windshield of the car was damaged. Daley never felt the car hit anyone, but he heard a woman yelling and screaming. She told him there was a woman under the car. Daley observed that the tire was on top of plaintiff's left thigh. He then drove the car off her leg.
Dherem Paul, a physician, testified that he treated plaintiff before and subsequent to her accident. He examined pertinent medical records and stated that the accident on November 30, 1979, caused her ruptured spleen.
Mitchell Krieger, also a physician, testified that he first examined plaintiff on January 7, 1980. She complained of pain in her low back area. Krieger had plaintiff admitted to a hospital for diagnosis and therapy. Her principal problem was low back pain. According to Krieger, this condition seemed to be causally related to the accident.
Hallie Mays, plaintiff's daughter, accompanied her mother to the Amphitheatre on November 30, 1979. As she, her sisters, her daughter and plaintiff were walking through the parking lot, she saw people running toward them. Mays told her mother, "Let's not go any further." They turned around and Mays began talking. She was addressing her mother, but when she received no response she turned and saw her mother on the ground and a car running over her; the tire was on her mother's legs. Mays shouted to the driver to stop the car. After the driver observed plaintiff under the car, he moved the car. Just prior to the accident, Mays did not hear any noises.
Ralph White, Officer Daley's partner, testified that when he noticed the disturbance in the Amphitheatre he radioed for assistance. Daley turned on the siren for a few seconds, and they heard a noise coming from behind which sounded momentarily like that of a shotgun blast. White "hit the floor" and Daley put the car in reverse.
Paul Garry was on duty as an usher on the evening of November 30, 1979. He was working as a cashier with Steven Mrowczynski. They were seated inside an automobile. People were trying to get inside the Amphitheatre without paying. He saw people throwing objects which he could not identify. Garry's attention was attracted toward plaintiff by the sound of bottles breaking and objects thrown. Just before the accident, Garry saw people running; then he saw the car move backward and then slide. He saw plaintiff in a crouching position, but he did not see her being hit by the car.
Steven Mrowczynski substantially corroborated Garry's testimony. Before the accident, Mrowczynski saw people throwing rocks and bottles. Just before she was hit, plaintiff was bending over and pushing a child out of the way.
Plaintiff's counsel then read to the jury the life expectancy for a woman of plaintiff's age and race, which was 21.2 years. Plaintiff then rested.
Defendant called plaintiff as its first witness. She stated that she did not see the car hit her and that she was trying to get out of the way of the people who were running when she was injured.
Arnold Sikler, a police officer, was assigned to investigate the accident and arrived within a few minutes of being informed of the occurrence. It was snowing.
Joseph Botwinski, Jr., a police officer, received the report of a disturbance at the Amphitheatre on the night in question. When he arrived, he observed 100 to 120 youths trying to enter the building. They were throwing objects toward the police car which ultimately struck plaintiff. Botwinski heard the car's siren. He saw the car back up and ...