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Boasiako v. Checker Taxi Co.

OPINION FILED JANUARY 16, 1986.

VICTOR BOASIAKO, PLAINTIFF-APPELLEE,

v.

CHECKER TAXI COMPANY ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendants, the Checker Taxi Company and Terry Bryant, one of its drivers, appeal from an order of the circuit court of Cook County. A jury awarded plaintiff, Victor Boasiako, damages of $9,000 for injuries that he received in a collision between his taxi and that of defendants. The jury, however, determined that plaintiff was 40% negligent and, accordingly, reduced its award to $5,400. In a counterclaim by defendants against plaintiff for damage to defendants' taxi, the jury also found for plaintiff, but found no negligence on his part. Defendants appeal from an order denying their post-trial motion for a new trial, contending that (1) the two verdicts were inconsistent and (2) that the conduct of plaintiff's attorney constituted reversible error.

We affirm.

The record shows that on May 16, 1980, plaintiff obtained a passenger near the intersection of Wacker Drive and LaSalle Street, Chicago, and proceeded eastbound on Wacker Drive. He intended to turn left at the intersection of Wacker Drive and State Street and travel north on State Street. The record further shows that defendant Bryant obtained a passenger near the intersection of Michigan Avenue and Wacker Drive and proceeded westbound on Wacker Drive. Bryant intended to continue westbound on Wacker Drive through the intersection at State Street. The taxis of plaintiff and Bryant collided at the intersection of State Street and Wacker Drive, the front right side of Bryant's taxi striking the rear right side of plaintiff's taxi.

Plaintiff filed a complaint against defendants on January 29, 1982. He alleged that Bryant negligently operated his taxi in one or more of several ways, that he received injuries, and that defendants' negligence proximately caused plaintiff's injuries. Defendants filed a counterclaim against plaintiff on February 23, 1982. They alleged that plaintiff negligently operated his taxi in one or more of several ways, that defendants' taxi was damaged, and that plaintiff's negligence proximately caused the damage. Plaintiff testified at trial that he made the left turn at the State and Wacker intersection on a green arrow. Bryant and his passenger testified that they entered the intersection on a green light and that there was no green arrow. On September 4, 1984, the jury returned verdicts for plaintiff and the trial judge entered judgment thereon.

Defendants apparently filed a post-trial motion seeking a new trial. The motion is not found in the record before us. However, we can glean from plaintiff's response to the motion, which is included in the record, that defendants claimed that the jury's verdicts were inconsistent and that the conduct of plaintiff's attorney was prejudicial and constituted reversible error. On October 22, 1984, the trial court denied the motion, and it is from this order that defendants appeal.

I

Defendants first claim that the jury's verdicts were inconsistent. The jury found for plaintiff, but determined that he was 40% negligent. In the counterclaim by defendants against plaintiff for damage to defendant's taxi, the jury also found for plaintiff, but found no negligence on his part. Defendants argue that the jury must have been mistaken and confused to return two such verdicts.

Defendants rely on the rule that the same jury on a single set of facts and circumstances cannot reach two different conclusions of facts as expressed in their verdicts that will support valid judgments unless those opposite, inconsistent conclusions are reconcilable under an applicable rule of law. Martin v. McCarry (1971), 2 Ill. App.3d 650, 654, 275 N.E.2d 897, 900.

• 1 The verdicts in the instant case are reconcilable. One of the instructions that the trial judge gave to the jury, adapted from Illinois Pattern Jury Instructions, Civil, No. 21.02 (2d ed. 1971), stated in part:

"If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the [counter]plaintiff, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the [counter]defendants."

The record shows that plaintiff denied the elements of negligence, proximate cause and injury in defendants' counterclaim, a separate cause of action. The jury could rationally have decided that defendants did not prove one or more of these elements by a preponderance of the evidence. If defendants did not meet the burden of proof for their cause, then the jury would properly return a verdict for plaintiff.

• 2 Under a comparative negligence standard, the parties are allowed to recover the proportion of damages not attributable to their own fault. (Alvis v. Ribar (1981), 85 Ill.2d 1, 16, 421 N.E.2d 886, 892.) Under the "pure" form of comparative negligence, which we follow in Illinois, the trier of fact simply reduces a plaintiff's damages by the percentage of fault attributable to him. (85 Ill.2d 1, 25.) The principles of comparative negligence do not relieve plaintiff of proving by a preponderance of the evidence the essential elements of an action in negligence: the existence of a duty of reasonable care that defendant owed to plaintiff, breach of that duty and injury proximately resulting from that ...


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